Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for November, 2012

US Consulates in India Expand Interview Waiver Program to Include H and L Visas

Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer.    Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.

Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.

About the Interview Waiver Program

The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step.    According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.

Another reason behind this move is also the increasing demand in U.S. visas in India.    In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year.   At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India.   In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.

Interview Waiver Program Eligibility Requirements

Under the expanded program, the following types of visas are eligible for the interview waiver program:

  • Business/Tourism (B1 and/or B2);
  • Students (F-1) returning to attend the same school and same program;
  • Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
  • Dependent (J2, H4, L2);
  • Transit (C) and/or Crew Member (D) – including C1/D;
  • Children applying before their 14th birthday traveling on any visa class;
  • Applicants applying on or after their 80th birthday traveling on any visa class.

There are additional requirements, all spelled out at the www.ustraveldocs.com website.  Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required);  (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).

Conclusion

We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster.    It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.

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 recommend 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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AAO Processing Times (November 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 November 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 9 months (a notable decrease, or improvement, of three months, compared to our last report as of October 1, 2012);
  • L-1 appeal takes 10 months (improvement of three months);
  • I-140 EB-1 Extraordinary Ability is current (less than six months), Multinational Manager or Executive takes 10 months (improvement of three months) while EB-1 Outstanding Professor or Researcher category is current;
  • I-140 EB-2 (Advanced Degree) is current (or six months or less, improvement of one month) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 24 months (improvement of five 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 (H-1B, 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 as little as six months (in comparison to close to three years recently).   We notice that AAO processing times improve  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 still around 2 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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Immigration Relief Options for Foreign Nationals Impacted by the Recent Hurricane Sandy

After the recent devastation throughout the U.S. east cost caused by Hurricane Sandy, our office is receiving a number of inquiries by foreign nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for foreign nationals who are impacted by the Hurricane Sandt.   The relief may be available to all foreign nationals if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Foreign nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.  Normally, an application to change or extend status filed after the period of authorized stay has expired would be denied.  In this case, the delay can be excused if it is caused by the disaster.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, foreign students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Immediate Relatives Immigrant Petitions

USCIS would also permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain foreign nationals who are impacted by Hurricane Sandy and the widespread destruction.  Our office stands ready to assist affected foreign nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

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December 2012 Visa Bulletin – EB-2 India Remains Unchanged at September 2004; EB-5 China Cutoff Date Possible

The U.S. State Department has just released the December 2012 Visa Bulletin which is the third 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 the possibility of a cutoff date for EB-5 China being introduced in a few months.   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 December 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the December 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.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by seven (7) weeks to October 22, 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 15, 2006, EB-3 China  moves forward by ten (10) weeks to July 1, 2006, while EB-3 India  moves forward by only one (1) week to November 1, 2002.
  • The “other worker” category moves forward by one (1) month for ROW and Mexico to December 22, 2006.  It moves forward by only one (1) week for Philippines to August 15, 2006 and remains unchanged for China at July 1, 2003 for China.  It moves forward by one (1) week for India to November 1, 2002.

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

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

The movements (or the lack thereof) reflected in the December 2012 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India will move very slowly over the next months.  Based on the significant retrogression two months ago and the lack of any movement this month, combined with Mr. Oppenheim’s expectations, we expect that there will be very slow and gradual forward movement in this category over the next months.

Anticipated Cutoff Date Movement and Predictions

The December 2012 Visa Bulletin provides an estimate of the movement in a number of categories for the next months (the estimates below are per month).

Employment-based Categories

  • EB-1 – expected to remain current;
  • EB-2 ROW – expected to remain current;
  • EB-2 China – five to eight weeks;
  • EB-2 India – no movement;
  • EB-3 ROW – three to five weeks;
  • EB-3 China – up to two months;
  • EB-3 India – up to two weeks;
  • EB-3 Mexico – three to five weeks; and
  • EB-3 Philippines – one to three weeks.

Family-based Categories

  • FB-1 – three to four weeks;
  • FB-2A – four to six weeks;
  • FB-2B – three to five weeks;
  • FB-3 – one or two weeks; and
  • FB-4 – one or two weeks.

EB-5 China Cutoff Date Possible

The December 2012 Visa Bulletin also alerts to a possible cutoff date being introduced for EB-5 China.   This was also confirmed during our recent meeting with Mr. Charles Oppenheim.   Such cutoff date may have to be introduced during the second half of the fiscal year.   While this prediction can change due to demand, it seems likely that the current strong demand for EB-5 China immigrant visas will force the Department of State to “slow down” the process by introducing a cutoff date 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 December 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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Reminder – DV-2014 Green Card Lottery Closes on November 3

We would like to remind our clients and readers that the Department of State DV-2014 Diversity Visa (a.k.a. “green card”) lottery is currently open but is scheduled to close at noon, Eastern Standard Time (EST) (GMT-5), on Saturday, November 3, 2012.

If you are planning to submit a DV-2014 entry, please do so well before the deadline because the website may become overloaded as the deadline approaches and some applicants may not be able to submit their entry in a timely manner.

Please see our alert about this year’s DV lottery, the eligibility requirements and how to apply.

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USCIS Now Stringently Enforcing Filing Deadlines for Student I-765 OPT Applications

In the past, USCIS had been somewhat flexible with student status and filing for employment optional practical training work authorization (OPT).  More recently, USCIS has been closing those gaps and enforcing the eligibility requirements and filing deadlines more strictly.  With this more stringent and literal implementation of the rules, it is imperative that foreign students, educational institution representatives, and employers of these students be aware of these tighter restrictions.

OPT Eligibility Requirements

Most foreign students are eligible for some form of Optional Practical Training (OPT) after completion of a certain educational degree.  There are several types depending on the student’s visa status, educational focus, and anticipated program completion date.

Generally, some of the OPT eligibility requirements are:

  • Must be a full-time student for at least 1 year prior to OPT;
  • OPT can be filed no more than 90 days before the 1 year school mark, 90 days before program end date, or no more than 60 days after program end date;
  • OPT may be full-time or part-time, but cannot extend beyond 1 full year of work (with certain exceptions for STEM students, who can benefit from the 17-month STEM OPT extension);
  • The student must have valid and active status in SEVIS;
  • The employment must be related to the student’s field of study;
  • For post-program completion OPT, the employment application (Form I-765) must be filed with USCIS within 30 days of the date the school representative enters the OPT recommendation into the student’s SEVIS record. In addition, the employment application must include the student Form I-20 endorsed by the authorized school representative within the last 30 days or less;
  • For STEM OPT, the employment application must be filed before any prior post-completion employment authorization expires; and
  • For M visa students, they must apply before the completion of their educational program.

While previously USCIS may have issued a Request for Evidence (RFE) when some of these eligibility deadlines were not met, they are now denying applications which do not meet these required dates after accepting them for review and after holding on to the applications for weeks, or even months.  In fact, an updated Form I-20 would no longer suffice to correct a delayed application for post-program completion OPT.  The school representative must also correct the student’s SEVIS record before USCIS will approve OPT employment authorization.  Because of this possibility of OPT application denial weeks or months after filing, it becomes important to not only file the OPT application well in advance (but within the required timeframes) but to anticipate and be prepared for a possible delay in work authorization.

USCIS Also Targeting Student Status Violations

In addition to adopting a more stringent approach towards reviewing and adjudicating I-765 OPT applications as discussed above, USCIS is also cracking down on student status violations.  There are several common mistakes which may cause a student to violate their student status:

  • SEVIS is not updated with changes to student’s status and/or program, including a change of address or change of employer (if working pursuant to practical training);
  • The student does not monitor their immigration status and is unaware if the U.S. government has not been properly made aware of reportable changes; and
  • Unexpected changes such as personal hardship, financial difficulties, medical emergencies, or family emergencies.

While USCIS allows reinstatement of student status in some cases, the student must be able to rectify their status relatively quickly.  One of the most important (and often very difficult to overcome) requirements for filing a reinstatement of F-1 student status is that the student should not have been out of status for more than five months (or show exceptional circumstances otherwise). Other requirements for reinstatement of status include that the student must be or will be pursuing full-time student status and must have no history of prior violations, unauthorized employment, or lapse in status.

How Can Our Office Help?

If you are a student or educational facility representative needing assistance with these F-1 student status requirements, OPT processing or student status and reinstatement, please contact us.  We would be happy to consult with you and analyze your options for filing or other alternatives, if available.   Alternatively, we urge all foreign students and educational representatives to keep in mind that it is their responsibility to maintain visa status and visa sponsorship by following all relevant rules and regulations.  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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