Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2013

DOS Rolls Out DS-260 Online Immigrant Visa Application to Most Applicants

The Department of State (“DOS”) has reported that they are transitioning to an online immigrant visa application as of September 3, 2013.    Immigrant visa applicants who are processing their immigrant visas (green cards) through the National Visa Center (NVC)/U.S. Consulate will now need to complete the DS-260 form online (Application for Immigrant Visa and Alien Registration).   Similarly, the Form DS-261 (Choice of Address and Agent) form will be online as well.

The online DS-260 form was, until now, used only for immigrant visa applicants for a few selected consulates.   With the upcoming transition, after September 3, 2013, DOS will require most immigrant visa applicants to complete the DS-260 form online (as opposed to the paper DS-230 form).   Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms (DS-230).  It is important to note that nonimmigrant visa applicants (B-1, H-1B, L-1, etc.) should still continue to use the DS-160 electronic application.

NVC Pending Cases

For those immigrant visa applicants who have a case pending with NVC already, NVC may instruct some applicants who previously submitted Form DS-230 on paper to submit Form DS-260 online.

Conclusion
We welcome DOS’s rollout of the DS-260 system to all applicants.   Even though the DS-260 application form is somewhat more complex to complete than the DS-230 paper form, it should eliminate the amount of paperwork, data entry mistakes and delays which are often associated with processing paper DS-230 forms.     Please do not hesitate to contact us if we can help you.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
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Current PERM Processing Times (August 5, 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 August 5, 2013.

Current PERM Processing Times

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

  • Regular processing: February 8, 2013.  DOL is processing PERM applications with priority dates of about February 8, 2013.  Accordingly, regular PERM processing times should be around six months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  Unfortunately, this category has seen additional delays (from five, to five-and-half months and now to six months).
  • Audited applications: August 31, 2012.  DOL is processing PERM audits which have a priority date of August 31, 2012.  This processing time has increased slightly (by one month) compared to our report as of June 4, 2013.    Accordingly, audited PERM applications are processed approximately eleven months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): August 5, 2013.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed on or about August 5, 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 August 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.   We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several 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 Clarifies Eligibility and Timelines for Filing I-485 for Diversity Visa Lottery Selectees

In a memorandum dated August 9, 2013, USCIS has released guidance and clarifications pertaining to the options and timelines for Diversity Visa (DV) selectees who choose to process their green card from within the U.S. by filing I-485, Application to Adjust Status.   The memo seeks to provide clarification to those DV selectees who choose to file I-485 from within the US and, specifically, to indicate that I-485 can be filed when the advance notification number becomes current.   This is done to ensure that I-485 applications can be filed earlier in anticipation of a visa number being current by the time the I-485 is ready for adjudication and approval.

Background of the Ways Diversity Visa Selectees Can Obtain Their Green Cards

Many of our readers who are familiar with the DV lottery are aware that there are two ways to process one’s green card — by processing through the National Visa Center (NVC)/U.S. Consulate or by filing with USCIS a Form I-485 from within the U.S. (for those who are physically in the U.S.).     The USCIS memo focuses only on those who elect to file I-485.   By law, DV visas expire at the end of a given fiscal year; accordingly, a DV adjustment applicant’s Form I-485 (including principals and any of their derivatives) must be adjudicated and approved on or before September 30 of the relevant fiscal year.   Recognizing that it often takes several months to process and approve an I-485 application, USCIS and the Department of State (DOS have created a system where DOS announced, in the monthly Visa Bulletin,  “advance notification” numbers in addition to the “normal” visa availability numbers in order to allow I-485 DV selectees to file their I-485s a little bit earlier.

Rationale of the Advance Notification Numbers

To ensure timely notification and encourage timely filing of applications for adjustment of status, approximately 50 to 60 days in advance of actual DV visa availability, DOS, in consultation with USCIS, publishes in its monthly Visa Bulletin a separate “advance notification” of DV rank cut-off numbers. Such advance notification enables persons to file their Form I-485 applications prior to the time a DV visa becomes “immediately available.” The listing of advance notification of DV availability is meant to enable a person to file his or her adjustment application, even though a visa is not yet available.

This advance notification provides an opportunity for DV adjustment of status applicants to file their Form I-485 applications earlier than would otherwise be possible, thereby enabling USCIS to begin review of such applications. This in turn affords USCIS additional time to determine an applicant’s eligibility for adjustment of status before the end of the fiscal year.

Mechanics of the Advance Notification Numbers Listed in each Visa Bulletin
The Department of State publishes its monthly Visa Bulletin on or about the ninth day of each month. Each Visa Bulletin indicates immigrant visa availability for the upcoming month (e.g., November immigrant visa cut-off numbers are published on October 9). For DV purposes, the Visa Bulletin currently includes two monthly allocation charts which provide: (1) DV visa availability for the current Visa Bulletin month; and, (2) advance notification of DV visa availability for the following month.
Availability Section.  When a DV rank cut-off number (from the DV notification letter) is listed in the availability section of the Visa Bulletin, visas will be available in that month for applicants with DV numbers ranked (in randomly selected order by region) below the specified cut-off number.   The listing of the DV rank cut-off number indicates the DV rank number of the first person who is not eligible to adjust his or her status in a particular month.

Advance Notification Section.  The rank cut-off number listed in the advance notification section indicates the DV rank cut-off numbers for the specific month covered by the advance notification. Anyone with a rank number below the listed rank cut-off number in the Visa Bulletin may file an adjustment of status application.

USCIS DV I-485 Case Procedures.   As of January 11, 2012, the USCIS Case Resolution Unit at the Lockbox reviews every DV-related Form I-485 for visa availability at the time of filing by verifying that the applicant’s rank number is lower than the advance notification cut-off number posted in the most recently published DOS monthly Visa Bulletin.   The officer  will confirm at time of final adjudication of the Form I-485 adjustment application (i.e., when all required processing has been completed) that the DV rank cut-off number is lower than the applicable rank cut-off number posted in the DOS’s current Visa Bulletin.  As a last step, the officer must also confirm that a DV visa number is actually available, before he or she may approve the adjustment application by submitting an electronic request for the DV visa – this is when the I-485 gets approved and the green card ordered for physical production.

It is important to note that these guidelines based on “advance notification” do not apply to I-485 DV applications filed for the current fiscal year in September because such applications must be adjudicated by end of September (the end of the fiscal year).     On the other hand, these guidelines do apply to adjustment applications that are filed on the basis of advance notification in the prior year’s September Visa Bulletin for the next fiscal year’s DV numbers.

Conclusion

We hope that these clarifications would help DV selectees who are eligible to apply for I-485 processing of their green card to better understand the I-485 DV processing option and to take advantage of the opportunity to file their I-485 little bit earlier to ensure that their I-485 application can be approved faster and before the end of the applicable fiscal year on September 30th.     Our office is ready and available to assist in this kind of situations.     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.

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September 2013 Visa Bulletin – EB-2 India and EB-3 Advance Significantly; FB-2A Remains Current But For Not Much Longer

The U.S. State Department has just released the September 2013 Visa Bulletin which is the last Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant forward movement in EB-2 India, the significant forward movement in EB-3 and the fact that FB-2A remains current for every country but with an expected cutoff date next month.

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

Below is a summary of the September 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 moves forward (again) by six (6) months to June 15, 2008.  EB-2 China remains unchanged at August 8, 2008.
  • EB-3 ROW, China and Mexico move forward significantly by eighteen (18) months to July 1, 2010.  EB-3 Philippines moves forward by five (5) weeks to December 1, 2006, while EB-3 India  moves forward significantly by nine (9) months to September 22, 2003.
  • The “other worker” category moves forward significantly by eighteen (18) months to July 1, 2010 for ROW and Mexico to July 1, 2010.  It moves forward by five (5) weeks to December 1, 2006 for Philippines and moves forward by two and a half (2.5) months to June 15, 2004 for China.  There is forward movement by nine (9) months for India to September 22, 2003.

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

Below is a summary of the September 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 two (2) weeks to September 15, 2006.   FB-1 Mexico moves forward by only one (1) week to September 8, 1993 and FB-1 Philippines moves forward by four (4) months to May 8, 2001.
  • FB-2A continues to remain current for everyone.
  • FB-2B ROW, China and India all move forward by two and a half  (2.5) months to February 15, 2006.  FB-2B Mexico moves forward by three (3) weeks to February 22, 1994 while FB-2B Philippines moves forward by one (1) month to January 22, 2003.

EB-2 India Moves Forward Again

Until a month ago, EB-2 India had been stuck at September 1, 2004 (since the October 2012 Visa Bulletin) – this is when EB-2 India retrogressed significantly and until today there had been no movement in this category.  After the August 2013 Visa Bulletin showed significant forward movement for EB-2 India, we welcome the continuing forward movement in this category in the September 2013 Visa Bulletin.   Although this month’s movement of about six month may not be significant enough for many, it is still a very notable forward movement which would allow many EB-2 India applicants to either complete their I-485 processing or file an I-485 for themselves or their dependents.

The Department of State has indicated that this significant advancement has been done in order to utilize all of the available visa numbers for the fiscal year (which ends on September 30th).   The Department of State and USCIS are expecting (and our office already has seen) increased activity in this category — National Visa Center (NVC) case processing and I-485 adjustment of status activity at USCIS.    It should be noted that with the increased activity over the next few months in EB-2 India, slowdown and even retrogression are possible.

EB-3 Moves Forward Significantly

In addition to EB-2 India, the September 2013 Visa Bulletin brings good news to folks under the EB-3 category.  The most notable movement is for ROW, China and Mexico where the movement is by eighteen months.   EB-3 India also moves nicely forward – by 9 months.   EB-3 Philippines may be disappointed by the relatively slow movement of about five weeks.  This significant forward movement is caused in an effort to make sure that there are no unused visa numbers for the fiscal year (to end on September 30th).

FB-2A Remains Current – Spouses and Children of Green Card Holders – Cutoff Date Upcoming

Another very significant development brought by the August 2013 Visa Bulletin and continuing (as expected) for the September 2013 Visa Bulletin is making FB-2A current for all countries.   The Department of State has indicated that this category will continue to be “Current” for September and is expected to remain so for the next few months.   The reason is that the Department of State wants to stimulate an increased level of “demand” (filings) in this category.     The Department of State reports that even though there are large amounts of registered F2A demand, currently there are not enough applicants (NVC fees paid and I-485 adjustment of status cases filed) who are actively pursuing final action on their case to fully utilize all of the available numbers.

It is important to note that the Department of State has indicated that a cutoff date will be imposed for the October 2013 Visa Bulletin.  As a result, it is important for those who are eligible to file under the FB-2A category to do so as soon as possible.

No Movement in EB-2 China

Those of our clients who are in the EB-2 China category will find it disappointing that there is no movement in the EB-2 China category (again!).     Hopefully, with the new fiscal year beginning on October 1st, the next Visa Bulletin would bring better news for EB-2 China.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India, EB-3 and FB-2A all countries.   Those applicants whose priority dates are current as of the September 2013 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 September 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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