Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2014

OFLC Annual Report Details DOL Employment Visa Processing

The Department of Labor (DOL) has released the most recent annual report for the Office of Foreign Labor Certification (OFLC).    Even though the report was recently released, it is for the 2012 fiscal year (FY2012) which covered the period between October 1, 2011 and September 30, 2012.    While we understand that the relevant period is not very recent, the annual report provides a very detailed picture and analysis of the various visa application processes handled by DOL and also provides very detailed statistics and graphs.

Highlights of the OFLC Report

The report is a 136-page document full of interesting statistics and patterns.  We will not provide a very detailed analysis of most of the areas in the report; however, we would share some interesting points we saw in the report.

  • In FY2012 OFLC processed almost half a million applications for 1.2 million positions.
  • The H-1B and H-2A programs saw increased in the number of applications (16% increase for H-1Bs); while PERM and H-2B decreased (10% decrease in PERM and 4.5% decrease for H-2B).
  • The PERM approval rate was approximately 81%.
  • The most active occupations were, not surprisingly, IT positions (Software Developers, Analysts, Electronics Engineers), followed by Admin Services Managers and Accountants/Auditors.
  • India is the leader in PERM cases (55%), followed by China (6%), Canada (5%), South Korea (5%) and Philippines (3%).
  • California is the state with most PERM cases, followed by New Jersey (decreasing trend), New York (decreasing trend), Texas (stable) and Washington (increasing trend – mainly due to Microsoft).
  • The majority (70%) of the certified PERM applications were for STEM degree holders (of which, about 95% were for IT/Engineering).    The same proportion was noted in the H-1B/LCA filings.


We invite our clients and readers who have an interest in the extensive details provided in the report to review it.   Our summary is simply intended to draw some interesting (to us, at least) highlights.   Although the report reflects a time period ending more than two years ago, especially in certain fast-pace industries, it still provides a valuable description of the process and some interesting trends and patterns among the various DOL immigration processes.

We 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.      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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Foreign National in the U.S.: What Documents Should I Carry With Me?

Our foreign national clients and readers often ask us about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel.     We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States.     This article seeks to explain the law and provide answers to this and related questions.

The LawRegistration and Carrying of Registration Documents

Section 262 of the Immigration and Nationality Act (INA) dictates that almost all foreign nationals in the U.S. must be “registered” with the proper government agency.   For example, registration happens when someone is admitted into the U.S. at the border or if someone’s status in the U.S. is extended or changed.     The registration is a mechanical process, set in the law and in existence for many years, and has been well established and are fairly transparent – many foreign nationals do not even realize (nor do they often need to) that their status in the U.S. has been “registered” with the  government.    After the registration takes place, Section 264(d) requires the U.S. government to provide a “registration certificate” to the foreign national.

This is where the requirement to carry registration evidence comes in.   Section 264(e) of INA requires every individual over the age of 18 to carry their “registration” documents with them at all times.   Specifically, section 264(e) reads:

e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) [where the government issues a “registration certificate” after each foreign national’s registration]. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Many of our clients and readers are surprised to learn about this requirement – and the reason is simply that the Department of Homeland Security (DHS) has generally not enforced the “at all times” language.    Often the requirement has been satisfied by an expectation (and ability) that the foreign national would be able to produce the registration document within certain period of time — perhaps by getting them from home or from a safe deposit box.

What Exactly Should I Carry:  What is the Registration Certificate?

As explained above, the law requires every foreign national to carry their “registration certificate” so the natural question is – what is this document?     The list is described in the federal regulations under 8 CFR. § 264.1(b).   Notable registration documents are the Form I-94 card, I-551 (green card), I-766 (EAD card).

For many people in the U.S., their registration certificate would be the Form I-94 card which is issued either at the port of entry (see below) or upon approval of someone’s extension or change of status (usually attached to the bottom of the Form I-797 approval notice).

It is important to note that effective May 2013, Customs and Border Protection (CBP) stopped issuing paper Form I-94 cards at the port of entry for most foreign nationals (exceptions are certain land entry points where paper is still used).   Under the new and current procedure (more details), most foreign nationals who are admitted into the U.S. have their passport stamped with a notation of the status type and the status expiration date.    To obtain their Form I-94 card (the “registration certificate”), a foreign national must take an extra step by going to the CBP I-94 website, completing the requested information and printing their electronic Form I-94 on paper.

In addition to the Form I-94 card (the registration certificate), we recommend foreign nationals carry with them a photo ID and, if applicable,  their visa document (such as Form I-20, Form DS-2019, or I-797 approval notice).

Enforcement and Applicability of the Requirement to Carry Registration Documents

As mentioned above, this requirement is very old and has been on the books for many years.   And yet, many people do not know about it and have never encountered a situation where they had to present their immigration registration document to an officer.     In certain parts of the U.S., it is more common for officials to ask for these documents.   For example, it is significantly more likely for an official to ask for the immigration registration documents in southern California or the southern border states (Arizona, Texas) compared to the Midwest or Northeast states.

Although domestic transportation lines and law enforcement officers do not often ask for these documents, in many cases they have the right to do so.   And if asked, a foreign national is supposed to have those documents with them.   We recommend foreign nationals to consider the possibility of requests for their  registration documents at transportation terminals or elsewhere even if they will never leave the territory of the United States.     Again, for foreign nationals the most common item of identification is the passport and the most common forms of evidence of lawful status in the U.S. are the I-94 card accompanied by the appropriate visa document (I-20, DS-2019, I-797, etc.).


We hope that this article alert would be helpful to many of our clients and readers to understand the requirements to carry immigration documents even while they are within the U.S. and even when they do not travel out of town.    We would love to hear stories or reports on officials requesting registration documents from our clients and readers.   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.      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 (January 14, 2014)

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 14, 2014.

Current PERM Processing Times

Most notable is the significant processing time for PERM applications – while there is no change in the processing time (7-8 months) for regular PERM cases, we easily look back at 2-3 month processing times as recently as a year or so ago.   Also, PERM applications on audit now take a month longer compared to last month.   The processing times, as reported by DOL, are as follows:

  • Regular processing: May 2013.  DOL is processing PERM applications with priority dates of May 2013.  Accordingly, regular PERM processing times should be around seven to eight months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  There is no significant change in the regular processing times compared to the last (December 6, 2013) report.
  • Audited applications: October 2012.  DOL is processing PERM audits which have a priority date of October 2012.  This processing time has worsened by a month compared to the December 6, 2013 report.   Accordingly, audited PERM applications are processed approximately 15 -16 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): January  2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in January 2014.  There is no change in this category, compared to our last report.    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.


The January 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a month ago with the exception of PERM audit applications where the processing time has increased by a month.   Over the past several months, 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 control and bring down the PERM processing times especially since they were as short as two months not long ago.

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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The SAVE System – Driving Licenses and Proving Valid Status

Unknown to many, the SAVE system allows DMV agencies throughout the United States to verify valid status of driving license applicants (where this is required).   The SAVE system is run by DHS and allows states and agencies to confirm an individual’s status and eligibility to certain benefits.   It all works well most of the time; however, there are instances in which the SAVE system does not have correct records and information and, as a result, delays in the application process are inevitable.   This article explains the SAVE verification process.

What is SAVE?

The Systematic Alien Verification for Entitlements (SAVE) program is a service run by the Department of Homeland Security that helps federal, state and local benefit-issuing agencies, institutions, and licensing agencies determine the immigration status of benefit applicants so only those entitled to benefits receive them.    Specifically, it is used by Department of Motor Vehicles (DMV) agencies throughout the U.S. to verify an applicant’s valid status in the U.S.

SAVE In Action

When a non-immigrant applicant for a driving license appears at a participating state’s DMV and submits a driving license application, one of the documents and information being checked is the valid immigration status of the applicant.    Among other processing steps, the DMV clerk would input the applicant’s information into SAVE and SAVE would provide the government’s response with respect to status, validity and allow the DMV to make a determination whether or not the applicant is eligible for a driving license (or other benefit sought).

Please note that different states have different driving license eligibility requirements and not all states participate in SAVE – please check your state’s eligibility requirements and DMV rules.

SAVE Verification Problems

In most instances, nonimmigrants driving license applicants do not realize the existence of the SAVE system and that it may be a part of the DMV application process.   However, there are cases in which SAVE provides the DMV a response indicating that the applicant cannot be issued a driving license.  For example, SAVE may (correctly or incorrectly) indicate that the applicant’s status has expired.  These are the kind of situations which would require (often) a significant time and effort to correct the SAVE record and be able to obtain a driving license.

Correcting SAVE Records

There are three levels of dealing with SAVE with respect to information which may be inaccurate.

First Step. SAVE begins verifying the legal status of nonimmigrants, immigrants and naturalized citizens with an initial verification (generally 3-5 seconds).   This is the initial (and often transparent to the applicant stage).    In most cases, the SAVE confirms the eligibility and the applicant continues with the DMV application process.

Second Step.  SAVE returns a negative response.    Additional verification is necessary in some instances where status cannot be verified through the first step.  A second verification query will be automated but can take from as little as 3-5 working days to a few weeks to generate a response.   The second step confirmation process is often initiated by the DMV’s SAVE office (not all DMV locations have a SAVE office – you should check with your state’s DMV to confirm which DMVs have SAVE offices).   Also, different states have different procedures on invoking the second step – many states require the applicant to complete a form, which is then used in the SAVE clearance process.   The applicant should be provided a SAVE case number and the status can be tracked online.

Third Step.  A third query may be necessary where the verification is not confirmed through Steps 1 and 2.  The DMV submits Form G-845 Document Verification Request with copies of an applicant’s proof of status documentation and immigration documents to the SAVE program who then verifies the person’s status manually.    This may take two to six weeks in most cases and the case can still be checked online.

Unfortunately for some applicants, in the event SAVE does not return positive confirmation of their status, the correction process may vary from a few days to a few months.  This makes it advisable to apply for a driving license as early as possible to minimize the chance that the applicant may be without a valid driving license for a period of time.

Pending Extension of Status Documents

Our office hears often from clients or readers who are seeking to extend their driving license while they continue their employment (or stay) in the U.S. pursuant to a pending application and who face SAVE or DMV issues because their I-94 card has expired.

Under the immigration law at 8 C.F.R. § 274a.12(b)(19), a timely filing of an extension of status request allows certain non-immigrants (H-1B, E-1, E-2, L-1A, L-1B, O-1, P-1, R-1) persons to stay legally in the US and work for 240 days past the expiration of the original I-94 or until adjudication of the application, whichever happens first.  This is otherwise known as the “240 day rule.” A proper filing of the application and a pending status allows for continued lawful status/presence and authorization to work.

When the DMV refused to issue a driving license in this kind of extension situations, there are two common reasons.  The first one is a DMV clerk who is not aware of the applicable regulations and who does not realize that certain extension of status applications allow status and permission to work.   This may be a training issue at some DMVs and often this can be resolved by seeking to speak with a supervisor at the location.

In other cases, the SAVE system returns negative confirmation and in this case the applicant should work with the DMV and follow the steps outlined above to seek to correct the record and obtain SAVE clearance before a driving license can be issued.


While invisible to many, the use of the SAVE system throughout the driving license issuance process makes it an acronym some nonimmigrants learn very quickly.    Other than filing proper paperwork and ensuring that one always maintains valid status, unfortunately, there is not much a nonimmigrant (or their employer or attorney) can do throughout the immigration process to ensure that SAVE records are correct.

We are hopeful that this article would help those who may need to deal with their DMV or to those who are in a SAVE verification process to better understand the process and their rights.    We would love to hear SAVE stories from our clients and readers.   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.      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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AAO Processing Times (January 1, 2014)

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, 2014.  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 October 1, 2013);
  • L-1 is current (no change);
  • I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive is also current (no change) and EB-1 Outstanding Professor or Researcher category is current (no change);
  • I-140 EB-2 (Advanced Degree) is current (no change) and EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker is current (no change) and EB-3 Other Worker is current on appeal (no change).

The AAO processing times reports have been improving over the past 6-12 months and we are now happy to report and see that all types of cases reviewed by the Administrative Appeals Office are “current” which means that a decision is expected in six months or less from the time arrives at the AAO.   Now that all times are “current” we hope that AAO would continue to maintain them at this level – many of our readers may remember that several months ago some of the AAO processing times were close to three 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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How to Skip the Per-Country Immigrant Visa Line – Cross-Chargeability Options

Many of our readers follow closely our 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 several Visa Bulletins have been disappointing for most, especially for EB India applicants with the lack of movement and the prospect of a very long wait time before their priority date becomes current.

With such little movement, of any, it is difficult to imagine an alternative to the long wait, in particular for those from India, but also from many Mexican, Chinese, and Philippine applicants.   For some, however, the rule of cross-chargeability could provide relief by moving them from an over-subscribed and long-delayed country of chargeability to another with a substantially shorter wait time.

The Cross-Chargeability, As Defined by the Immigration and Nationality Act (INA)

The rule is set by the Section 202(b)(2) of INA.   Specifically, the rule states that:

[I]f an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.

The cross-chargeability rule applies to both I-485 adjustment of status and to consular processing immigrant visa cases.   However, it is important to note that while the rule has been generally accepted and works for most of the cases, the way the law is drafted does not require but merely allows the government to apply cross-chargeability.  Note the language, “may, if necessary, to prevent the separation of husband and wife.”   It is our experience that a properly documented, flagged and submitted I-485 cross-chargeability application would be accepted and approved under this section of INA.

Skipping the Line – 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 born in a different country, their place of birth was a different country at the time of birth, or they were born on the high seas (rare).

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

Examples of Cross-Chargeability (and Line-Skipping)

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 an October 2006 priority date, and it could be a few years before the current EB-3 India  cutoff time moves from September 1, 2003 (currently, from the February 2014 Visa Bulletin) to past October 2006 to make this worker’s priority date current.  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, as of today,  is processing priority dates of June 1, 2012 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 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 2010 priority date.  Currently, as of this month, EB-2 China cases with a priority date of January 8, 2009 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.

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.   We offer a number of consultation options to help you evaluate your situation.

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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February 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the February 2014 Visa Bulletin which is the fifth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the slowing forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the February 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to January 8, 2009.
  • EB-3 ROW, China and Mexico move forward by two (2) months to June 1, 2012.  EB-3 Philippines moves forward by two (2) months to April 15, 2007, while EB-3 India  remains unchanged (again) at September 1, 2003.
  • The “other worker” moves forward by two (2) months to June 1, 2012 for ROW, China and Mexico.  It moves forward by two (2) months to April 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

Summary of the February 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to January 1, 2007.   FB-1 Mexico moves forward by only one (1) week to October 1, 1993 and FB-1 Philippines moves forward by six (6) weeks to August 15, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to July 8, 2006.  FB-2B Mexico moves backwards by eleven (11) months to May 1, 1993 while FB-2B Philippines moves forward by three (3) weeks to May 22, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this February 2014 Visa Bulletin, confirm our predictions.    The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Again, But Slowly

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories continue to move forward (again) but not as fast as they have been advancing over the past few months.   This month, the movement was only  by two months — compared to the forward movement of six months in the January 2014 Visa Bulletin.   This is another significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

EB-3 China More Advanced than EB-2 China

Over the past month or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (June 1, 2012) is more advanced than for EB-2 China (January 8, 2009).

Very often, an EB-2 China applicant seeks to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date and be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the February 2014 Visa Bulletin (EB-3, specifically) 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 February 2014 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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Visa Processing Updates from U.S. Consulates in India

The Department of State (DOS) has provided a number of interesting observations and statistics about the processing of visas at each of the U.S. Consulates in New Delhi, Chennai and Mumbai.    The reported information is as of late November 2013 but most of it is not time-sensitive and we believe remains current as of today.

U.S. Consulate New Delhi

Nonimmigrant Visas.  The Consulate processes approximately 600-800 applications per day in “off-season”, sometimes 1,000 during the busy summer months.   New Delhi is the fourth busiest U.S. Consulate in the world and has an average approval rate of 75%.   The average wait time for an interview is 38 minutes, the actual interview lasts for an average of 2-4 minutes and an interview is generally available in about 3 days.   New Delhi reports that 97% of the cases are given decision the same day and for those who are approved, it takes 1-3 days to actually get the visa.   The approval rate for H-1Bs is reported at 90% with F-1 student visa approval rates also increasing.

Immigrant Visas.  The Consulate processes approximately 80 immigrant (green card) visas on an average day with the process taking around 1 hour.   There is no backlog and the interviews are scheduled as soon as USCIS sends the case to the Consulate.   New Delhi reports that 95% of the IV applicants are from Punjab.

General Notes.   the Consulate does not do automatic reports for cases which are pending for X days.   The Consulate suggests applicants who are under secondary (administrative) processing to “stay in touch” and reach out to the Consulate if it has been 30 days without a decision.

U.S. Consulate Chennai

Nonimmigrant Visas.  Chennai processes only nonimmigrant visas and has sole responsibility for blanket L-1 visas.  It is the 13th U.S. Consulate in the world in terms of volume and handles 1,200 to 1,300 applications per day, out of which 25% are H-1Bs and 25% are L-1s.   Interviews generally last around 3 minutes and the Consulate strives to provide response for the vast majority of cases on the spot.     Chennal advises that L-1B visa applicants should be expected to explain their job title and how their knowledge if specialized (job description, job duties, and whether there are other companies in the US who do similar work).

General Notes.  The U.S. Consulate in New Delhi handles initial correspondence requests; if the query is specific to Chennai, then it is forwarded internally.   Phone calls are accepted directly between 9 and 10 am local time.   If a case is pending in administrative processing for more than 90 days then an inquiry is appropriate.    Chennai notes that in a significant portion of the cases, they never receive a response to a section 221(g) document request.

U.S. Consulate Mumbai

Nonimmigrant Visas.  The U.S. Consulate in Mumbai handles approximately 216,000 nonimmigrant visa applications per year (14 in the world), of which 22,000 were for H-1B and 12,000 for F-1 visas.   54,000 visa extension applications were processed without an interview.   The average wait time is 45 minutes with a goal of decreasing to 30 minutes per case.     March and December are the busiest months.     For H-1Bs, the Neufeld Memo (right to control) should not be a major issue if USCIS has already approved the petition (after, presumably, considering the Neufeld Memo factors).

Immigrant Visas.  There were 21,000 immigrant visa cases processed in fiscal year 2013.    The processing time difference between K-1 and CR-1 is very small and the goal is to have every interview take 90 minutes or less (now it is a bit longer).

General Notes.  221(g) letters have been revised to be more clear and targeted — “all-inclusive” letters should not be issued any longer.  The Consulate is trying to issue more on-the-spot decisions and rely less on 221(g) letters.     End-client letters (for H-1B holders) are generally not requested any longer.   The Consulate is aiming for a 2-week turnaround time once the additional requested information is provided.     Administrative processing of 90 days is “normal”.   In cases which are returned to USCIS but are affirmed by USCIS the Consulate would typically call the person back to re-interview.


We hope that these tidbits from these U.S. Consulates in India would be helpful to some of our clients and readers who will be attending visa interviews there.   While these U.S. Consulates highlight better approval rates across many visa categories, we still caution that strong preparation for the visa interview is key to success.   Our office is able and happy to assist throughout the visa interview process and we have a number of representation packages, including helping respond to section 221(g) requests or follow-up with Consulates for a long-pending case.

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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I-9 Compliance Reminders 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 the 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 for all hires and section 2 of Form I-9 must be completed by the employer within 3 business days of the first date of employment, regardless of immigration status or citizenship of the new employee.

I-9 Retention

Form I-9 should be on file for every current employee.  For former employees, Form I-9 documents should be retained for 1 year after termination or 3 years after start of employment, whichever is later.

I-9 Storage

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

Accepted Versions of I-9

New I-9 forms should be filled out using the latest version of the form (as of the date of this article, March 8, 2013 edition only).  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.

E-Verify and I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every new 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-9s for former employees or not maintaining I-9s 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 employers.  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-9s 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-9s 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 of 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 be 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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