Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2013

The Immigration Innovation Act of 2013 Proposes Substantial Reforms to Employment-based Visas

It is only Tuesday and this week has already been full of immigration proposals.   After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration.      Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster.   See the full text of the proposed bill.

Employment-based Nonimmigrant H-1B Visas

The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000.   The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year).   Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).

Employment-based Green Cards

The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past.   Certain categories of applicants would be exempt from the green card numbers:  dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category).   The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost.   Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.

Additional Fees to be Used for U.S. Training Programs

The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.

Conclusion

It should be noted specifically that this is simply a proposed bill, and not a law.   This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law.   Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.

We will certainly follow developments very closely and provide updates.   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 this article.

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Current PERM Processing Times (January 3, 2013)

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 January 3, 2013.

Current PERM Processing Times

Most notable are the steady processing times for regular and audited PERM applications and the improvement in the initial intake of appeals to the certifying officer.   The processing times, as reported by DOL, are as follows:

  • Regular processing: October 2012.  DOL is processing PERM applications with priority dates in October of 2012.   Accordingly, regular PERM processing times should be around three to four months (no change compared to recent reports).   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: May 2012.  DOL is processing PERM audits which have a priority date of late May 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): January 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of early January 2013.  There is continued notable improvement in this category in comparison to prior months.    Accordingly, PERM requests for reconsideration are processed in  approximately one month after the appeal was filed.    Please note that unlike the reports for the regular review and audit review (above) which refer to the priority date of the PERM case, this report reflects the date on which the PERM appeal was filed.
  • “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).

Increased Scrutiny and Enforcement May Lead to Increased PERM Processing Times

It should be noted, however, that DOL has indicated that they would continue increasing enforcement of the PERM program — according to recent DOL report, they plan on auditing or performing supervised recruitment for 30% of PERM cases.   This is likely to add to the volume of DOL officers and, perhaps, add to the processing times.   Preparing and filing a strong PERM application becomes very important.  Also, in terms of H-1B extension and green card processing planning, it becomes prudent to plan conservatively on a PERM case remaining under review for 9+ months.

Conclusion

The January 2013 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 (or at least keep steady) the PERM processing times over the next weeks and months even as they plan on increasing their PERM program enforcement reviews.

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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Group of Senators Releases Framework for Comprehensive Immigration Reform

Earlier today, a group of eight U.S. Senators released a proposed framework for a comprehensive immigration reform.   The document signed off by Senators Charles E. Schumer of New York, John McCain of Arizona, Richard J. Durbin of Illinois, Lindsey Graham of South Carolina, Robert Menendez of New Jersey, Marco Rubio of Florida, Michael Bennet of Colorado, and Jeff Flake of Arizona, outlines the framework for comprehensive immigration reform, including a pathway to U.S. citizenship for about 11 million undocumented immigrants currently in the U.S.

Our office has closely monitored Congress’ attempts to enact into law a comprehensive immigration reform over the past few years; however, this time around it seems that passing a comprehensive immigration measure is actually possible, and even likely.    After the November 2012 elections, the Republicans have embraced the idea of immigration reform more warmly.   As a result, we will continue monitoring serious developments on this topic and provide updates for the benefit of our readers and clients.

The Proposed Comprehensive Immigration Reform Framework

Create a Path to Citizenship for Unauthorized Immigrants Already in the U.S.

Under the proposal, the law would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes.   Such immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants.  Such measures would include border security, a new program to help employers verify the legal status of their employees and more stringent measures aiming to prevent immigrants to overstay their visas.

Minor children who are not documented and who were brought to the U.S. would not be subject to the “back-of-the-line” provisions and would have an easier path to citizenship.  Similarly, agricultural workers who have been working without documentation would have an easier path to citizenship.

Improve the Legal Immigration System and Attract the World’s Best and Brightest

The proposal seeks to reduce current backlogs  in the family and employment-based visa categories so that future immigrants see the lawful immigration system as the only way of entry into the U.S.   Also, a green card would be awarded to Ph.D. or Master’s degree holders in science, technology, engineering or math (STEM) from an American university.

Stronger Employment Verification

The proposal calls for a “tough, fair, effective and mandatory” employment verification system making employers liable for hiring undocumented workers and making it harder for undocumented workers to falsify documents and find employment.

Increasing Foreign Workers Quotas

The proposal seeks to improve the system for hiring lower-skilled workers by U.S. employers by allowing more lower-skilled workers’ quotas and making it faster and easier for U.S. workers (after following procedural safeguards to ensure no U.S. workers are available for the job) to bring foreign workers.

Other Immigration Proposals in Congress

There are other immigration proposals, in varying stages, intended to deal with related issues.   For example, Senator Orrin G. Hatch of Utah, a Republican, and Senator Amy Klobuchar of Minnesota, a Democrat, would propose a bill which would nearly double the number of H-1B temporary visas available each year to highly skilled immigrants. It would also free up more permanent resident visas, known as green cards, so those immigrants could eventually settle in the United States and go on to become citizens.

Conclusion

It seems as finally there seems to be broad enough consensus here in Washington, DC that the current immigration system must be reformed to deal with structural problems.   Our office faces and helps individuals who have to deal with such structural immigration system problems every day and we welcome these proposals.    Just because this is a framework, it is subject to (and will likely) change, negotiation and political manipulation by many; however, we hope that what would emerge as immigration reform law is a fairer system which would allow certainty and path to achieving the American dream to many.

We will certainly follow developments very closely and provide updates.   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 this article.

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Public Charge – Overview and Description; Are Unemployment Benefits Permitted?

Our office frequently consults with companies and with individuals who are faced with the question on whether receiving a certain government benefit (most often unemployment benefits) would cause problems for an individual’s immigration process.     This article seeks to explain the concept of “public charge” and to provide some useful information in the initial analysis of whether taking a certain benefit is permissible for non-immigrants and immigrants.

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   We seek to provide some general guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program (CHIP)
  • Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
  • Job training programs
  • In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
  • Non-cash benefits under TANF such as subsidized child care or transit subsidies
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
  • Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Unemployment Insurance Benefits Are Normally Not Subject to Public Charge

USCIS has specifically indicated that unemployment insurance benefits paid to a noncitizen worker are not subject to public charge consideration.   The unemployment benefit insurance program is administered by the states who pick up the cost of providing the unemployment insurance initially (normally 26 weeks).  After this period, the federal government pays for the cost of the unemployment insurance up to a certain maximum number of weeks.

Eligibility for unemployment insurance varies slightly by state and also as to whether the benefits are paid by the state (during the first 26 weeks) or by the federal government (afterwards).   The group of eligible recipients during the state-paid initial 26 week period is larger than the eligible recipients under the extended federal benefits period.  For example, H-1B holders may be eligible to obtain benefits under the state-paid initial 26 week period, but they are normally not included in the list of eligible recipients of the extended federal benefits.  Lawful permanent residents (green card holders) are normally eligible for both the state-paid and federal-paid periods.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (contact us or schedule a phone consultation to analyze your case) before accepting benefits which may be deemed to be public charge.

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Immigrant Visa Delays – Cross-Chargeability Relief

Many of our readers follow closely our (and others’) reports of the monthly Visa Bulletin which provides cutoff dates for those immigrant visa (green card) applicants who are current and have immigrant visa numbers available (i.e. their actual permanent resident “green” card is assigned an available number and can be issued).   The past few Visa Bulletins have been disappointing for most, especially for EB-2 and EB-3 India applicants.   With such little movement, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also from Mexico, China, and the Philippines.  For a few, the little known rule of cross-chargeability could provide relief by moving them from an over-taxed and long delayed country of chargeability to another with a substantially shorter wait time.

How Does Cross-Chargeability Work?

Cross-chargeability allows a family of applicants to move their country of immigrant visa chargeability from one category to another if a member of the family was born elsewhere.  Most often this applies to a spouse (not the main applicant) who was either born in a different country, or their place of birth was a different country at the time of birth, or they were born on the high seas (rare).  Here are a few examples of how the rules apply to real-world situations:

  • A married foreign worker born in India has a pending Employment-Based Third Category (“EB-3”) case with a October 2006 priority date, and it could be a few years before the current EB-3 cutoff time moves beyond November 15, 2002 (from the February 2013 Visa Bulletin).  However, because the worker’s spouse was actually born in Canada, in this example, cross-chargeability would allow the EB-3 October 2006 priority date to be processed under the all-other-nationalities (Rest of the World, or ROW) EB-3 category, which is processing priority dates of February 1, 2007 and earlier.  As a result, a long delay in waiting for the EB-3 India category to reach the October 2006 priority date is bypassed and the family can obtain their green cards within weeks or few months (depending on how the application is filed).
  • Another married foreign worker born in China has an EB-2 immigrant visa waiting with a July 2009 priority date.  Currently, EB-2 China cases with a priority date of January 15, 2008 and earlier are being issued permanent resident status.  However, the worker’s spouse was born in Hong Kong before 1997 when it became part of China again.  Since Hong Kong was not part of China at the time of birth, cross-chargeability allows the worker and spouse to be processed under the all-other-nationalities (ROW) EB-2 category.  As this category is current, there would be no wait time for a current priority date.

It is important to note that parents cannot take advantage of cross-chargeability and use the country of birth of a child.

How Can We Help?

Do you have a family member whose country of birth differs from the country of birth of the main applicant/worker? We would be happy to consult with you and analyze your options for filing or other alternatives, if they apply to your situation.   The possibility of significant improvement in the waiting/processing of one’s green card application makes cross-chargeability a desirable option, if it is applicable.

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 this article.  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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I-9 Compliance – Cleaning Up for the New Year

The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws.  As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase their number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance.  In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law.  Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.

Basic I-9 Requirements

Form I-9 is required by all employers to have each employee complete within 3 business days of hiring them, regardless of immigration status or citizenship.

I-9 Retention

A properly completed I-9 should be on file for every current employee.  For former employees, I-9’s should be retained for 1 year after termination or 3 years after start of employment, whichever is longer.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  I-9’s and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9’s in the same format.

Accepted Versions of I-9

New I-9’s should be filled out using the latest version of the form (either February 2, 2009 or August 7, 2009).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

  • Not timely completed;
  • Employer discrimination by requesting too few, too many, or only specific documents;
  • Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
  • Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
  • Improper retention by not timely removing expired I-9’s for former employees or not maintaining I-9’s in a safe and secure manner; and
  • Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by companies.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9’s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements, specifically what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9’s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers?

I-9 Official Resources

We would like to share some general I-9 resources.

How Can We Help

The Capitol Immigration Law Group can provide various levels internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also 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 or you have any questions or comments.

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February 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the February 2013 Visa Bulletin which is the fifth Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement (again) in EB-2 India.   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 continue to face a very slow (if any) forward movement over the next months.  There is continued notable forward movement in EB-3 China of almost two months.

Summary of the February 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2013 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 five (5) weeks to January 15, 2008.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to March 15, 2007.  EB-3 Philippines moves forward by only one (1) week to August 22, 2006, EB-3 China  moves forward by seven (7) weeks to November 15, 2006, while EB-3 India  moves forward by only one (1) week to November 15, 2002.
  • The “other worker” category moves forward by six (6) weeks for ROW and Mexico to March 15, 2007.  It moves forward by one (1) week at August 22, 2006 for Philippines and remains unchanged (again) at July 1, 2003 for China.  It moves forward by one (1) week for India to November 15, 2002.

Summary of the February 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2013 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 January 15, 2006.   FB-1 Mexico moves forward by only one (1) week to July 15, 1993 and FB-1 Philippines moves forward by ten (10) weeks to March 8, 1998.
  • FB-2A moves forward by one (1) month to October 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to October 8, 2010.
  • FB-2B ROW, China and India all move forward by five (5) weeks to January 15, 2005.  FB-2B Mexico moves forward by three (3) weeks to December 15, 1992 while FB-2B Philippines moves forward by one (1) month to May 15, 2002.

No Progress in EB-2 India – Confirms Our Expectations for a Very Slow Forward Movement in the Future?

Similar to the past two to three months, many in the EB-2 India community have been eagerly anticipating to see what the February 2013 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 February 2013 Visa Bulletin does not bring good news.   The continued 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 February 2013 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 of few 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.

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 February 2013 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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AAO Processing Times (January 1, 2013)

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 January 1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal is “current” (6  months or less) (a notable decrease, or improvement, of three months, compared to our last report as of November 1, 2012);
  • L-1 is current (improvement of four months);
  • I-140 EB-1 Extraordinary Ability is current, Multinational Manager or Executive takes 9 months (improvement of one month) while EB-1 Outstanding Professor or Researcher category is current;
  • I-140 EB-2 (Advanced Degree) is at 7 months (increase of one month) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 19 months (improvement of five months) while EB-3 Other Worker is current 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 or seven 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 a little less than 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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Department of State Launches Online Application Status Check System

The Department of State (“DOS”) has announced and launched an online system which allows applicants who have cases pending with DOS to check the status on their applications.    The system works for both Immigrant Visa (IV) and Non-Immigrant Visa (NIV) applications filed/pending at either the National Visa Center (NVC) or at a U.S. Consular Section abroad.

The system asks for a case number (for IV cases) or Application ID/Case Number of consular cases and displays (at this point, fairly limited) information about the designated case.   We hope that DOS would continue expanding the functionality and the availability of information to make it more valuable to applicants who have cases pending with DOS.

It is important to note that the DOS Visa Status Check system is different and separate than the U.S. Citizenship and Immigration Service (USCIS) online status check system which provides information on cases filed with USCIS (such as petitions for an immigration benefit or applications for status).

We welcome the introduction of DOS’s Visa Status Check system but hope that DOS would expand the system to allow more detailed information to be provided in order to make the system really useful and to allow applicants for visas to obtain timely information on the outcome of their case.    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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