Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2013

US Senate Passes Immigration Reform Bill (S. 744)

Earlier this afternoon the U.S. Senate voted 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act” which seeks to provide a comprehensive immigration reform.    We have provided an overview and analysis of S.744 when it was introduced in the U.S. Senate on April 16, 2013 and we urge our readers and clients to review the main points of S. 744.   Our clients and readers can also refer to the full text of S.744, as it was passed earlier today.

Hold the Champagne:   Senate Passage is  an Important but Early Step in Legislative Process

While S. 744 is not perfect in many ways, we are pleased to see the US Senate pass a comprehensive reform bill.   However, it is important to underscore that this proposal would become a law in its current shape only after an identical bill is passed by the US House of Representatives and then signed by President Obama.    The House has indicated that they would not vote on this bill and would instead take a deliberate approach to draft their own version of an immigration reform.   This process can take months to complete and much can happen during this time.

Conclusion

We are very happy to be finally able to share some concrete developments on the proposal for a comprehensive immigration reform.   After the Senate vote, we expect a lot of activity and focus on the US House of Representatives over the next days and weeks and we will monitor closely and report on any substantial developments on immigration reform.   Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law.   In the meantime, 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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DOMA Struck Down — Immigration Benefits Available to Same-Sex Married Couples

On June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act (“DOMA”).  In a 5-4 decision, the Supreme Court held that DOMA is unconstitutional because the word “marriage” in any federal law meant only a union of a man and a woman.  Until yesterday, DOMA denied a number of federal benefits, including immigration, to legally married same-sex couples.    As a result of the decision, the U.S. Citizenship and Immigration Service (“USCIS”) is expected to immediately recognize, for federal immigration purposes, same-sex marriages that were valid in the jurisdictions where they were performed.

Department of Homeland Secretary Napolitano, in a statement issued after the decision, suggested that she would work with other federal agencies towards “implement [the Court's] decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

Immigration Benefits Available to Same-Sex Married Couples

Now that DOMA has been struck down and subject to immediate implementation by USCIS, same-sex individuals legally married in any jurisdictions recognizing same-sex marriage should be eligible to apply and obtain a number of immigration benefits.  Among such benefits are the right to be petitioned for by a same-sex U.S. citizen spouse; the right to be granted derivative status as the spouse of a non-immigrant visa holder, or to be included in a same-sex spouse’s green card application; to obtain derivative asylee or refugee status; and the right to be considered as a qualifying relative for purposes of cancellation of removal.

For example, same-sex spouses should now be eligible for H-4, L-2 or TD dependent visas, in addition to being eligible for derivative spouses’ green cards.   Obviously, same-sex spouses would also be eligible to be sponsored on the basis of family immigration by a US citizen spouse.

We would like to point out that while DOMA was struck down effective yesterday, we do not know yet whether USCIS will need to revise some of its policies, including officer training, in order to comply with the court’s decision and to afford immigration benefits to those same-sex spouses who are eligible.   We expect that there would be at least some period in which federal agencies, including USCIS, would take to review and adjust its policies, guidelines and personnel training.   We hope that such period is as short as possible, but we are prepared to assert these newly-created rights and benefits on behalf of applicants and our clients.

Conclusion

We applaud the Supreme Court’s decision and we invite readers who may benefit from the newly-enabled federal benefits to contact us if we can be of any assistance.   While the initial weeks or months following the decision may be surrounded by some uncertainty, we hope that USCIS would be able to update its guidelines and allow for true equal treatment to same-sex married applicants.    Also, we will continue monitoring this topic and provide 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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Current PERM Processing Times (June 4, 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 June 4, 2013.

Current PERM Processing Times

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

  • Regular processing: January 11, 2013.  DOL is processing PERM applications with priority dates of about January 11, 2013.  Accordingly, regular PERM processing times should be around five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: July 31, 2012.  DOL is processing PERM audits which have a priority date of July 31, 2012.  This processing time has increased slightly (by one month) compared to our report as of April 1, 2013.    Accordingly, audited PERM applications are processed approximately nine to ten months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): June 3, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in early  June 2013.  There is no change in this category, compared to our last report, after there was a notable improvement in this category.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is 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.

Conclusion

The June 2013 PERM processing times report shows a slight additional increase in the regular and appealed PERM processing times, and a welcome improvement in the PERM appeal (motion for reconsideration) processing times.   On behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times as only a few months ago they were as short as two months.

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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USCIS Issues Numerous RFEs on Pending I-485 Applications

Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based primary and derivative Form I-485, Application to Adjust Status.   Most of the RFEs were issued and dated June 13th or June 14th and hardcopies are starting to be delivered to individual applicants and to their attorneys.     Our office has also started receiving such documents and we have been receiving numerous inquiries with respect to this massive RFE event.

Identical I-485 RFEs

It appears that the majority of these RFEs were issued by the Texas Service Center and most appear to be for EB-2 India applicants.    In terms of substance, the RFEs appear to be almost identical and seek information and clarification on two points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE and (2) a current (and original) employment verification letter from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer.   Please see a redacted sample of the RFE template issued.

Maintaining Employment Authorization

The RFE requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

Original Employment Verification Letter

The RFE also asks for an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   The EVL should be in original, on employer letterhead, and should confirm that the job offer described in the I-140 petition exists (for sponsoring employers).   In situations where the I-485 applicant has ported their I-485 to a new employer (or to the same employer but on a different position) pursuant to AC21, the RFE seeks an EVL from the new employer confirming that the new position is same or similar to the position noted in the I-140 petition.

As mentioned above, the EVL should be in original, currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Derivative Dependents Issued Identical RFEs

What is somewhat troubling is that USCIS has issued RFEs with identical language to derivative dependents.    Specifically, dependents’ RFEs include the phrase “You are an Employment-Based Principal Applicant” which is plainly incorrect for derivative beneficiaries.

Also, the RFE for derivatives asks for evidence in the same two areas as primary applicants without any consideration that such documents or information may not be applicable for derivative family member applicants.   For example, a derivative applicant’s RFE asks for proof of continued employment authorization since the filing of I-485.   Many derivative applicants, especially children, do not seek and obtain EAD work permits as part of their I-485 application.   In fact,  whether or not a derivative applicant is employed (unless on status permitting employment such as H-1B or L-1), is not a factor in the I-485 adjudication.

The RFE for derivative applicants also asks for a letter from “your petitioning (Form I-140) employer.”    Derivative I-485 applicants, by definition, do not have a petitioning I-140 sponsor employer.    It is unclear what is USCIS’s motive — whether they seek such a letter from the primary applicant’s sponsoring employer, or simply that they reused the template without regard to a specific case’s parameters.

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

There is much speculation as to what is the USCIS intent in generating so many RFEs in such a short period of time without, in many cases, careful consideration of the facts of a specific case.    We will not speculate since and we do not yet have an official position from USCIS.    For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

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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When is the Interview Waived for Family-based I-485 Adjustment of Status Applications?

Many of our clients and readers (especially those who have family-based immigrant visa cases) are aware that a family-based Form I-485, Application to Adjust Status, required an interview to be conducted at a local (to the applicant) service center.   The requirement for these interviews is set under 8 CFR §245.6 which also indicates that interviews may be waived in certain cases.   We would like to provide description of the situations where an interview may be waived.

Instances Where Interview Can be Waived

It is important to note that USCIS has authority to waive an interview if the case falls within one of the situations where an interview waiver can be granted.   Just because a case falls under one of the situations below does not mean that an interview will be waived.      USCIS’s decision to waive the interview for certain cases is based on standards set at the national level, and include adjustment categories in which there is normally enough evidence to make a decision without an interview.

Specifically, interviews can be waived for I-485 applications for:

  • Unmarried minor children and stepchildren of U.S. citizens (IR7 and CR7) that are accompanied by original or certified copies of supporting documents;
  • Parents of U.S. citizens (IR0) that are accompanied by original or certified copies of supporting documents;
  • K1/K2 entrants— Fiancé(e)s of U.S. citizens and children of Fiancé(e)s (CF1/CF2);
  • Natives/Citizens of Cuba filing under 11/2/66 Act (also spouses/children of such individuals regardless of their citizenship and place of birth) (CU6/CU7);
  • Unmarried & Under 14 year old children of lawful permanent residents (F27);
  • Cases where the applicant has been interviewed in the course of an investigation or field examination, and the adjudicating examiner determines that further interview of the applicant is unnecessary;
  • Cases in which there is sufficient evidence contained in the record to support a denial of the adjustment of status application.

Interview waiver will not be granted for I-485 cases:

  • With Supplement A to Form I-485, Adjustment of Status Under Section 245(i);
  • With an EWI class of admission; or
  • As part of a family packet; unless every application in the family packet meets the interview waiver criteria.

Conclusion

We hope that this information would be helpful for family-based I-485 applicants who are preparing or are awaiting the outcome of their I-485 application.   The fact that an interview may be scheduled affects the processing time of a case, including possibly affecting the applicant’s plans for travel, employment, etc.    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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Visa Bulletin Expectations and Predictions for the Remainder of the Fiscal Year – EB-2 India Forward Movement Expected

After the July 2013 Visa Bulletin was issued a few days ago, many of our clients and readers are anxious to get a sense of  what we should expect for the remainder of the 2013 Fiscal Year (ends on September 30, 2013).    As a result,  we would like to share the Department of State (the agency determining the Visa Bulletin cutoff dates) expectations for movement of visa numbers over the next few months and specifically, for August and September 2013.   Please note that these are short-term predictions and depending on the number of applications as a result of the next months or two’s visa numbers, the rate of cutoff date movement may change.

Expectations for Employment-based Categories for August-September 2013

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

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; unlike last year when there was a cutoff date introduced in the summer.

EB-2 India.   Some forward movement expected.   At this time it appears that the availability of “otherwise unused” Employment Second preference numbers will allow for movement of this cut-off date in August and/or September. We do not know what kind of forward movement is expected.   It is expected that such movement will generate heavy new applicant demand, primarily by those who are upgrading their status from the Employment Third preference category.  A sustained level of heavy demand could impact the cut-off date at some point during fiscal year 2014.

EB-2 China.   Up to two months at a time possible.

EB-3 Rest of World (ROW).    No additional movement expected until October. This cut-off date has advanced 18 months during the past three months.  Such rapid movement can be expected to generate a significant amount of new demand, with the impact not being felt for three to five months. Therefore, the cut-off date will be held until it can be determined what level of demand is to be expected, and whether it is likely to be sustained.

EB-3 China.  No additional movement expected until October.

EB-3 India.  Up to three weeks at a time.

EB-3 Mexico.  No additional movement expected until October.

EB-3 Philippines.   Up to two weeks at a time.

Conclusion

It is good news to see that some forward movement in EB-2 India is expected over the next two months, although we do not know by how much the cutoff dates in this category are expected to advance.    Many of our EB-2 India clients and readers are eagerly awaiting some movement in this category and it appears that there will be some such movement coming next month.

Those EB-2 India applicants who will become current with this anticipated movement should be able to file or interfile their existing I-485s to a new I-140, if applicable, and hopefully get the benefit of AC21 portability rules. If our office can be of any assistance, please do not hesitate to contact us.   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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July 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004; Significant Forward Movement in EB-3

The U.S. State Department has just released the July 2013 Visa Bulletin which is the tenth 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 and the very significant forward movement in the EB-3 category for most countries (with the exception of India and Philippines which moved very slightly forward).

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

Below is a summary of the July 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 current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by three (3) weeks to August 8, 2008.
  • EB-3 ROW, China and Mexico move forward by four (4) months to January 1, 2009.  EB-3 Philippines moves forward by only one (1) week to October 1, 2006, while EB-3 India  moves forward by only two (2) weeks to January 22, 2003.
  • The “other worker” category moves forward by four (4) months for ROW and Mexico to January 1, 2009.  It moves forward by one (1) week to October 1, 2006 for Philippines and moves forward by five (5) months to March 22, 2004 for China.  It moves forward by two (2) weeks for India to January 22, 2003.

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

Below is a summary of the July 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by five (5) weeks to June 1, 2006.   FB-1 Mexico moves forward by only one (1) week to August 22, 1993 and FB-1 Philippines moves forward by six (6) months to July 1, 2000.
  • FB-2A moves forward by four (4) months to October 8, 2011  for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by almost (4) months to September 1, 2011.
  • FB-2B ROW, China and India all move forward by almost (4) months to November 1, 2005.  FB-2B Mexico moves forward by four and a half (4.5) months to November 1, 1993 while FB-2B Philippines moves forward by seven (7) weeks to December 22, 2002.

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

Unfortunately, the July 2013 Visa Bulletin does not bring any news for us to report in connection with EB-2 India.   This category has been stuck at September 1, 2004 since the October 2012 Visa Bulletin.  Yes, we realize we are repeating what we have been reporting over the past several months, but again this month the EB-2 India cutoff dates remain unchanged.     We are into the last quarter of the fiscal year, and 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.

Significant Forward Movement in EB-3

The July 2013 Visa Bulletin brings some continued notable forward movement in the EB-3 category for most countries.    According to the State Department, this has been done in an attempt to generate demand so that the annual numerical limits may be fully utilized, and such movements may continue for the next few months.   Once the number of EB-3 filings increases to show that the available visa numbers for the year will  be utilized, the EB-3 forward movement would slow down or stop.   Since the last two months have advanced the EB-3 dates significantly, resulting in a high demand, it is possible to see slowdown in the EB-3 movement in the next few months.  In fact, this month’s visa bulletin advanced by four months, compared to seven months in the prior month.
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 July 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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