Labor Immigration Law

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Archive for October, 2012

Visa Bulletin Predictions and Updates from Charles Oppenheim (October 24, 2012)

There is a more recent version of this article.
Please see our most recent report from Mr. Charles Oppenheim.

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 China and India have huge backlog and will move very slowly over the next few months.   EB-2 India will move very slowly, if at all.    EB-3 China and, specifically, India, will also move very slowly forward.  EB-5 is becoming very popular category and a cutoff date later in the year is possible.

General Visa Number Trends

Mr. Oppenheim reiterated the fact that in the employment-based context, each green card application case is “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for and applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in additiion to EB-2 visa numbers are expected to remain oversubscribed and to move slowly forward, more so for India than China.

At this time last year, Mr. Oppenheim had indicated that he expects to advance EB-2 India and China significantly over the next few months.  His predictions were correct – as we witnessed, EB-2 India and China moved forward very rapidly in late 2011 and early 2012.   Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India, specifically, will move very slowly, if at all, over the next months.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   A cutoff date for EB-5 is possible.   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

Mr. Oppenheim did not elaborate too much on family-based cases — so we are unable to provide his thoughts on this subject.  However, the general expectation is that there family-based cases should continue to move with the same steady pace they have been moving over the past months — in other words, without the kind of wild swings seen in the employment-based categories such as EB-2 India and China.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB-2 China and EB-2 India.  Unlike last year, where these two categories were anticipated to move forward dramatically, unfortunately, EB-2 for China and India are expected to move very slowly.   Specifically, Mr. Oppenheim indicated that he expects EB-2 China to move forward by approximately 2 weeks in every month’s visa bulletin with a possible target of cutoff date somewhere in the second half of 2008 by the end of the fiscal year (September 30, 2013).

For EB-2 India Mr. Oppenheim indicated that very little or no movement is expected over the next months.  The reason is simply the huge demand of EB-2 cases and the very small number of visa numbers available in this category.    The high demand appears to be caused by the high number of I-485 cases filed by EB-2 applicants (and their family members) earlier this year and also the very high number of EB-3 India applicants who are now porting into EB-2 India.   Mr. Oppenheim suggested almost no movement in EB-2 India with an absolutely best case scenario of having a cutoff date of late 2007 or early 2008 by the end of the fiscal year.

EB-3 Rest of World (ROW).  This category is expected to move gradually forward for the next few visa bulletins — anticipated forward movement of 3 to 4 weeks per month.

EB-3 China.  This category is expected to move notably forward – by 4-6 weeks per month for the next few months.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and forward movement will continue to be slow.    This category is expected to remain unchanged or to move very slowly forward (by a 1-2 weeks or so each month).   This is mainly caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as many EB-3 India applicants are porting into EB-2, there is some possibility that EB-3 may move a little bit faster because some EB-3 candidates will simply drop out of the line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is very strong — a 120% increase compared to last year, with 80% of the allocated numbers going to Chinese nationals.   Mr. Oppenheim suggested that a cutoff date (the first for EB-5) is possible (even highly likely) towards later in the fiscal year.   As an example, Mr. Oppenheim indicated that 20% of the annual numbers for EB-5 have been used in the first two months of the fiscal year – October and November.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the slow rate of EB-2 India forward movement in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down the EB-2 India forward movement even further to be able to accommodate EB-2 India applicant with a very early (2003, 2004, etc.) priority date.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Our EB-2 India and China and our EB-3 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.   Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  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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Use of Paper Form I-94 To Be Eliminated

Almost all non-US nationals who have traveled to the U.S. at least once are familiar with the little white (or green) card inserted into one’s passport upon admission into the U.S.  (sample)  Many people do not fully realize the significance of the Form I-94 — most importantly, it records the entry date into the U.S. and determines how long a foreign national is entitled to remain lawfully in the U.S.   Form I-94 card is important document serving to establish valid status in the U.S. and to obtain certain benefits, including driving licenses.

Proposed Elimination of Form I-94

In the near future, the U.S. Customs and Border Protection (CBP,  the agency which admits foreign nationals in the U.S.)  is expected to stop issuing Form I-94s to most foreign national at the U.S. ports of entry.    The Department of Homeland Security (which oversees CBP and Citizenship and Immigration Service) is instead proposing to use an automated entry system to record each nonimmigrant’s arrival.   Travelers will receive a passport stamp annotated with their immigration status and the date their period of stay expires.  After the I-94 is eliminated, CBP may create an online portal to allow nonimmigrants to check their status and period of stay and print out a record of their admission.  But until such time, foreign nationals will only have their passport stamp to prove entry and validity of status.

It should be noted that foreign nationals entering at land ports of entry will, for the time being, continue to receive a functional I-94 card, as will refugees and some other classes of foreign nationals.

What the I-94 Change Means to Employers and Foreign Nationals

Currently, the I-94 card is used as proof of lawful immigration status and the permissible period of stay. In addition, numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number, a driver’s license, among others.  USCIS rules require nonimmigrants to carry the I-94 as proof of their status.

Further, along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database.  Since Form I-9 require employees to present and employers to inspect the actual paper I-94 card, it is important for employers to expect, and keep abreast of, the upcoming changes.  It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements pertaining to completing the Form I-9. Though CBP has been meeting for some time now with interested government agencies about its paperless I-94 implementation program, specific plans to revise regulations that currently require Form I-94 are not yet known.

Conclusion

While we applaud the government’s efforts to create a more efficient paperless system of recording foreign nationals’ entry information, the impact of eliminating the paper Form I-94 is significant and, in many cases, not fully understood and analyzed.   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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November 2012 Visa Bulletin – Second Visa Bulletin for Fiscal Year: EB-2 India Remains Unchanged at September 2004; EB-2 ROW is Current

The U.S. State Department has just released the November 2012 Visa Bulletin which is the second Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement in EB-2 India and that EB-2 ROW is now back to “Current.”   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may face a very slow (if any) forward movement over the next months.

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

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

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all now current (after they had a cutoff date of January 1, 2012 in October).    EB-2 India remains unchanged at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by six (6) weeks to September 1, 2007.
  • EB-3 ROW and EB-3 Mexico move forward by one (1) month to November 22, 2006.  EB-3 Philippines moves forward by only one (1) week to August 8, 2006, EB-3 China  moves forward by nine (9) weeks to April 15, 2006, while EB-3 India  moves forward by only one (1) week to October 22, 2002.
  • The “other worker” category moves forward by one (1) month for ROW and Mexico to November 22, 2006.  It moves forward by only one (1) week for Philippines to August 8, 2006 and by only one (1) week for China to July 1, 2003 for China.  It moves forward by one (1) week for India to October 22, 2002.

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

Below is a summary of the November 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 three (3) weeks  to November 1, 2005.   FB-1 Mexico moves forward by only one (1) week to June 22, 1993 and FB-1 Philippines moves forward by fifteen (15) months to July 1, 1997.
  • FB-2A moves forward by six (6) weeks to July 15, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to June 22, 2010.
  • FB-2B ROW, China and India all move forward by three (3) weeks to October 8, 2004.  FB-2B Mexico moves forward by two (2) weeks to October 15, 1992 while FB-2B Philippines moves forward by three (3) weeks to February 15, 2002.

No Progress in EB-2 India – Suggests Very Slow Forward Movement in the Future?

Many in the EB-2 India community have been eagerly anticipating to see what the November 2012 Visa Bulletin would look like in an effort to “predict” how quickly the cutoff dates in EB-2 India would move in the future.   Unfortunately, the November 2012 Visa Bulletin does not bring good news.   The lack of any movement in EB-2 India this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.    This is the Department of State’s way 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 (many of whom are by now eligible for AC21 porting, however).

Based on the significant retrogression last month and the lack of any movement in EB-2 India this month, we expect that there will be very slow and gradual forward movement in this category over the next months.

EB-2 ROW Current

Another important development is that EB-2 ROW category is now back to “Current”, after it had a cutoff date for a few months.   The expectations are that EB-2 ROW will remain current, at least for a few months; however, it is possible that towards the end of the fiscal year — summer of 2013 — there may be a cutoff date established to control the rate of filings as the number of available visas in EB-2 ROW decreased (similar to what happened in the summer of 2012).

Stay Tuned for Visa Bulletin Predictions

Over the next couple of weeks, our office will be meeting with Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State and also known as the person responsible for the Visa Bulletin cutoff dates movement.    We expect to gain additional insight from Mr. Oppenheim on the trends and the expected movements in the cutoff dates over the next several months.   Stay tuned (on our website, Newsletter, Facebook or Twitter pages) for news.

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 November 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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How Are USCIS Processing Times Determined and What do They Mean?

It is very likely that anyone who has had a case filed and pending with USCIS has used the online status check and has also checked the “normal” processing times for the type of a case they have had filed.   Many of our clients and readers are well aware of these two resources and we encourage following the information posted on the website.

Recent Issues with Inaccurate Processing Times Reports

Over the past few months, we have seen an increasing number of cases for which the processing times reports do not reflect accurate case status.  In other words, the processing times reports have been inaccurate, in some cases, substantially so.   For example, when USCIS processing times indicated that H-1B cases are processed within 3 months, our office had a number of pending cases which had been pending well above this time period.

USCIS has addressed some of these concerns and have taken steps to correct the way the processing times are gathered and reported to ensure higher quality data.     Recent internal investigations by USCIS have revealed that some of the processing times are simply being reported incorrectly.   For example, the Texas Service Center had inadvertently been processing cases out of their receipt order, thereby deviating from their standard first-in/first-out policy.    We are assured that this deviation has been corrected.

How Are Processing Times Determined?

The USCIS calculated processing times are intended to be a reflection of the number of months of application/petition receipts that an office’s inventory of pending cases represents.    For example, a 4 months processing time reported for a service center indicates that the inventory of pending cases (waiting to be processed) was equal to the number of cases that the center had received over the past 4 months.    This means that the processing times are somewhat backward looking in the sense that they do not necessarily reflect how long a new case would remain pending.

USCIS also shows the online processing times based on workload processing goals.   If USCIS is processing a specific type of a petition in less time than the processing goal, the processing time would be shown in months.    If USCIS is taking longer than the processing time goal to handle a case, USCIS will post the specific filing date of the oldest pending case the service center has to process as of the date of the processing time chart.

USCIS’s methodology in calculating the processing times is as follows:   USCIS only calculates the time a case is considered to be actively pending with USCIS and is under adjudication.  It does not take into account the time USCIS is waiting or an action by the applicant or petition.   As an example, the time is takes for USCIS to issue and wait for a response to a request for evidence (RFE) (usually 84 or 87 days), is not reflected in the processing times.

USCIS Working to Provide More Recent Processing Times Information

Another substantial problem with the processing times report is that the data is simply very old.    Often, by the time a processing times report is published online, it is already 30-, 45- or even 60-days old.    USCIS has indicated that it works with its internal IT and Performance and Quality Departments to try to speed up the information gathering and reporting process.   According to USCIS, the current process of gathering the processing times information is manual and based on self-reporting.   USCIS is working on a new system which should allow automated, accurate and faster reporting.    The system is currently being tested and is scheduled for implementation in early fiscal year 2013.

Conclusion

The ability to obtain recent, accurate and timely information on a case’s processing status and expected turnaround is vital for our office and for our clients and readers.   We had reported recently on issues with the online case status system and we remain hopeful that USCIS would continue working towards improving their online case status system and its processing times reports.     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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AAO Processing Times (October 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 October 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 12 months (a notable decrease, or improvement, of three months, compared to our last report as of September 1, 2012);
  • L-1 appeal takes 13 months (improvement of four months);
  • I-140 EB-1 Extraordinary Ability is current (less than six months), Multinational Manager or Executive takes 13 months (improvement of three months) while EB-1 Outstanding Professor or Researcher category is current;
  • I-140 EB-2 (Advanced Degree) takes 7 months (improvement of one month) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 29 months (improvement of two months) while EB-3 Other Worker is current (6 months or less) on appeal (no change).
Conclusion
The AAO processing times for many of the (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 a little over 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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Taiwan to be Designated a Visa Waiver Program Country

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano has just announced that DHS has designated Taiwan as a Visa Waiver Program (VWP).   As a result, Taiwan passport holders will be able to travel visa-free to the United States starting on November 1, 2012.

The VWP will enable citizens of Taiwan to travel to the United States, beginning on November 1, 2012, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA) (about ESTA; about the ESTA fee).

Currently, 36 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

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Rules Governing I-485 Portability to a New Employer Under AC21

In connection with the late 2011/early 2012 rush of adjustment of status (I-485) applications, mainly in the EB-2 India and China categories, and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   Many of these I-485 filers now become eligible for porting their I-485 green card process to a new employer because their I-485 has now been pending for more than 180 days.   As a result, we seek to remind some folks that their I-485 may be portable to a new employer, for a same or similar job, and to provide some guidance and clarifications on the main rules and options for porting one’s I-485 green card application to a new employer under AC21.

AC21 Background

The American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) provides in section 106(c) that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.

Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

Should I Invoke AC21 and Notify USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing an Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something “wrong” with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for invoking AC21 proactively is to preempt an RFE in cases where there is also a change of address.  While not officially confirmed by USCIS, in some cases when there is change of address, in addition to change of employer, USCIS gets a notification of this address change (due to the requirement that a Form AR-11 must be filed with USCIS).    In some cases, USCIS has been issuing RFEs on the pending I-485 applications seeking information relating to AC21.

In addition to preempting an RFE, as discussed above, another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share very quickly with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

  • You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
  • Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
  • You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

How “Similar” Should the New Job Be?

Another critical question in connection with AC21 is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a somewhat recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

A salary discrepancy between the sponsored job and the AC21 job is also reviewed by USCIS — but the focus is to determine whether a substantial salary increase is cause by the passage of time, natural career growth or moving to a higher cost-of-living area (all of which are okay).   On the other hand, if a substantial salary discrepancy cannot be explained on some of these factors, it may suggest that the AC21 job is not “same or similar”.    In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase.

Should H-1Bs Be Transferred or EAD Should be Used for Employment?

It should be noted that the analysis with respect to AC21 portability discussed herein does not necessarily depend on whether a new job is taken pursuant to EAD (based on the pending I-485 application) or pursuant to an H-1B transfer.   There are many case-specific factors which may affect the decision whether to work under EAD or H-1B — however, if all things are equal, we normally recommend that a new job be taken pursuant to an H-1B transfer.

The reason is that we recommend that foreign nationals who are I-485 applicants (and may otherwise be able to work using EAD) continue working and staying on the U.S. pursuant to H-1B status.   This way, in the event (however unlikely it may be) of an I-485 denial, the foreign national would be able to continue staying and working in the U.S. while the I-485 issues are addressed.   On the other hand, if one is employed with an EAD and the I-485 is denied, then this person (and family members) may need to leave the U.S. immediately, obtain H-1B extension (if possible) and H-1B stamp  before being able to return to the U.S.  — a situation which is certainly undesirable to employer and employee.

Travel Abroad

Another common two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is 1) whether they can travel abroad using advance parole (AP) document issued when working with the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.

First, it is worth reiterating the point made in the previous paragraph that it is better to continue working and traveling using H-1B (or L-1, as applicable) while waiting for I-485 approval and after changing employers under AC21.    Second, there is one major rule which warrants repeating – be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

AC21 was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a notification with USCIS (as discussed above).  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent upon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

Conclusion

As many I-485 applicants are now becoming eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21,  as discussed in this article, before jumping ship to a new employer.   There are significant issues and questions to be addressed before AC21 eligibility is confirmed — and considering that many, especially in EB-2 China and India, may have a long wait before their priority date becomes current, a decision to invoke AC21 is very important.

Our office is happy and available to assist with AC21 case analysis and with invoking AC21.   Please do not hesitate to contact us or consider our consultation options.   Also, 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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