Labor Immigration Law

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Archive for February, 2013

Visa Bulletin Predictions and Updates from Charles Oppenheim (February 2013)

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

In a recent conversation with the American Immigration Lawyers Association (AILA) of which our office is a member, Mr. Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, has provided some updates and thoughts on the visa numbers and the Visa Bulletin.    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.    Mr. Oppenheim provided some recent updates and thoughts on the visa number movement over the next few months and we are happy to share with our clients and readers.

Summary of Mr. Oppenheim’s Key Points

Immigration Reform.  Immigration reform proposals that are currently circulating in Washington, DC are under review at Mr. Oppenheim’s office so that his office is ready to adjust if/when an immigration reform (whatever it ends up looking like) becomes a law, his office is ready to respond.

EB-5.  Over the past few months, Mr. Oppenheim’s office had expressed a concern that EB-5 China numbers were moving too fast; however, it appears that the numbers have leveled off which means that a cutoff date for EB-5 China, while possible, is not as likely anymore.   At the same time, worldwide EB-5 usage is up 75% when compared to the same period of last year.

EB-1 India and China.  According to Mr. Oppenheim, EB-1 India and China have used numbers for the year, but the rest of the EB-1 categories’ numbers can “fall across” and satisfy any additional EB-1 India and China demand and prevent a cutoff date.

EB-2 India.   Very little, if any, movement expected in the short term due to upgrades (porting of priority date) from EB-3 India to EB-2 India.   According to Mr. Oppenheim, in December 2012 alone, India EB-2 had 125 cases approved that were from 2003 or earlier.   Considering the current 2004 cutoff dates, EB-2 India could easily reach the annual limit — an indication that any forward movement is extremely unlikely.   Possible good news is the possibility of certain “fall down”  from EB-1 (numbers are not known at this point) to allow for more numbers to be used for EB-2 India.   “Fall down” refers to taking numbers from one category which may remain unused (EB-1) and allocating t another category which has a high demand (EB-2 India, for example).     Current numbers indicate that there are approximately 42,000 EB-2 India cases in line with priority dates prior to May 2010.

EB-3 India.   There are 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.   Also, some of these cases are upgrading to EB-2 so the numbers are in constant flux.

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 India. No forward movement expected; possible retrogression.

EB-2 China.   Three-to-six weeks per month.

EB-3 Rest of World (ROW).    Four-to-six weeks per month.

EB-3 China.  Two-to-three months per month.

EB-3 India.  Up to two weeks per month.

EB-3 Mexico.  Four-to-six weeks per month.

EB-3 Philippines.   Up to one week per month.

On Predicting the Visa Bulletin Cutoff Dates

We wish to reiterate previous comments and thoughts of Mr. Oppenheim with respect to 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.  Our EB-2 India 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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PERM Statistics from the Department of Labor

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2013 (October 1, 2012 to December 31, 2012) on their processing of PERM cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2013 Fiscal Year)

PERM

According to the report, during the quarter, there were 16,724 cases received (slight decrease from previous quarters), 12,123 certified (notable increase from prior quarters), 1,532 denied (another notable decrease) and 680 withdrawn.  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 2,000-3,000 cases.

As of December 31, 2012, there are 29,344 (increase from prior quarters) PERM cases pending at DOL.   Of these, 48% are pending analyst review (slight decrease), 37% are in audit (no change), 14% are on appeal (substantial increase) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 31,000 prevailing wage determination requests filed — of those, 25,747 were for PERM cases, 1,804 were for H-1B cases (notable decrease) and 3,130 were for H-2B cases (notable increase).

In terms of activity, more prevailing wage determinations were issued in Q1 compared to prior quarters – 33,246.   The number of pending applications has decreased over each of the months in the quarter and is at 11,519 at the end of the quarter.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    There were 58,812 H-1B LCA filings in the first quarter, a decrease over prior quarters which is, again, mainly attributed to the lack of H-1B cap filings.  During the quarter, there were 56,637 LCAs certified for 175,806 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (1,461, out of 66,303) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

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USCIS Processing Times May Be Affected Under Upcoming Sequester

As many of our clients and readers are aware, unless Congress decides to act on a long-term federal deficit-reduction plan before March 1, the government will suffer automatic slashes under the looming “sequester” plan passed in 2011.  It will cut 8 percent from U.S. military spending and 5 percent from other domestic spending budgets.    The Department of Homeland Security (“DHS”), which includes Citizenship and Immigration Service (“USCIS”) is likely to be affected as well — meaning that cuts to DHS programs and staff are likely.

How Would the Sequester Affect USCIS?

One of the questions we hear most often is whether the upcoming sequestration (which seems very likely to happen, as of the date of this article) is, Would the sequestration affect USCIS operations and processing times?

While it appears that DHS’s budget will be affected as a whole, many agencies within DHS will be impacted more than others.  For example, the FEMA, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are among the agencies hardest hit.   All of this means that there will be less agents, airport screeners and border agents on duty, which would affect waiting and processing times.

While USCIS is also slated to lose funding, most of its budget comes from fees collected for processing various applications and services, so the impact to USCIS should not be as significant compared to ICE or CBP.   However, even if USCIS does not suffer directly from the cuts, the magnitude of the cuts and the fact that other related agencies are affected is likely to affect at least somewhat USCIS operations.  For example, of CBP has to furlough some of its workforce, it may take longer to cross through certain border posts and it may be more difficult to obtain immigration-related benefits by CBP – such as I-94 processing, corrections, FOIA requests.

Conclusion

We remain hopeful that Congress would reach a compromise over the next week or so and avert the sequestration.   However, we have urged our clients who rely on federal agencies to consider that there may be an additional delay in obtaining certain immigration-related services.   While we do not expect USCIS to be affected as dramatically as other agencies within DHS, it is still possible for our clients and readers to experience notable delays when dealing with USCIS.   Therefore, please plan accordingly.

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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H-1B Cap for Fiscal Year 2014 Opens on April 1, 2013

The U.S. Citizenship and Immigration Service (“USCIS”) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2014 (FY2014) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 1, 2013.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2014 starting on October 1, 2013.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2014 H-1B cap is April 1, 2013.  By law, the earliest starting employment date for petitions approved under the FY2014 H-1B cap is October 1, 2013.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAs tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2013 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2014 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or in just over two months.

Below is a comparison chart of the H-1B cap demand for the past two H-1B cap seasons.

As the U.S. economy is gaining strength, we believe that the H-1B cap will be finished faster than last year when it took a little over two months for all H-1B visas to be used.    Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because of the increasing demand and the recovering U.S. economy, it is our expectation that the H-1B cap this year will be in high demand and we recommend that clients consider their H-1B needs as soon as possible and be prepared to file on the first available date – April 1, 2013.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

Contact Us to Start Your H-1B Cap Case

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Guidance on I-9/Employment Verification for DACA Applicants

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.     According to recent USCIS figures, there have been approximately 420,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

  • Must be under the age of 31 as of June 15, 2012;
  • Must have arrived in the United States before the age of 16;
  • Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
  • Must have entered the United States without inspection or have expired status as of June 15, 2012;
  • Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
  • Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  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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March 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the March 2013 Visa Bulletin which is the sixth 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 March 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 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 four (4) weeks to February 15, 2008.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to May 1, 2007.  EB-3 Philippines moves forward by only one (1) week to September 1, 2006, EB-3 China  moves forward by nine (9) weeks to January 22, 2007, while EB-3 India  moves forward by only one (1) week to November 22, 2002.
  • The “other worker” category moves forward by six (6) weeks for ROW and Mexico to May 1, 2007.  It moves forward by one (1) week to September 1, 2006 for Philippines and remains unchanged (again) at July 1, 2003 for China.  It moves forward by one (1) week for India to November 22, 2002.

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

Below is a summary of the March 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 four (4) weeks to February 15, 2006.   FB-1 Mexico moves forward by only one (1) week to July 22, 1993 and FB-1 Philippines moves forward by over seven (7) months to October 15, 1998.
  • FB-2A moves forward by one (1) month to November 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to November 15, 2010.
  • FB-2B ROW, China and India all move forward by six (6) weeks to March 1, 2005.  FB-2B Mexico moves forward by four (4) weeks to January 15, 1993 while FB-2B Philippines moves forward by three (3) weeks to June 8, 2002.

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

Similar to the past several months, many in the EB-2 India community have been eagerly anticipating to see what the March 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 March 2013 Visa Bulletin does not bring good news.   Halfway through the fiscal year, 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 March 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 March 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 (February 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 February 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) (no change from our last report as of January 1, 2013);
  • L-1 is current (no change);
  • I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive takes 9 months (no change) and EB-1 Outstanding Professor or Researcher category is current (no change);
  • I-140 EB-2 (Advanced Degree) is current (improvement of one month) while EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 14 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 months and EB-3 cases in as little as 14 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 over one year.

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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