Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for July, 2014

Visa Processing System Experiencing Problems – Global US Visa and Passport Processing Delays Possible

We are getting updates from the U.S. Department of State and from other sources that the global visa processing system used by the Department of State to process U.S. visa applications and passports is experiencing technical problems — as a result, U.S. Consulates around the world are unable, at least temporarily, to complete visa application processing.

Database Glitch Causing Increasing U.S. Visa Processing Backlogs

The database which seems to be causing problems is the State Department’s system of record and is used to approve, record and print visas and other documents to ensure that national security checks are conducted on applicants.

The problems have reportedly started on Saturday and the inability to properly process visas has already created a huge backlog of visa applications waiting to be processed.   We are hearing that there may be as many as 50,000 visa applications being on hold in one country only (and growing), as a result.

Are You Experiencing Delays?  Share Your Experience With Us

Are you experiencing delays with your U.S. visa or passport processing as a result of this?   Are you getting any information from the U.S. Consulate?   Please contact us and share your experience.  You can also tweet us at @cilawgroup.   We are trying to combine information from various parts of the world so that we can share with our contacts in Washington, DC and also to report to our readers.

Conclusion

At this time, it is unclear how long this outage would last.  Hopefully, it is something which can be fixed over the next day or two so that normal operations would continue.   However, we caution that residual delays in U.S. visa processing may still linger for days or weeks, especially considering the growing backlog of U.S. visa cases around the world for each hour the system remains down.   If you are planning to apply for a U.S. visa or a U.S. passport, please ensure you plan early in advance and take into consideration that there may be delays in the process.

We will be providing updates on this outage as we have more information.   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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USCIS Clarifications on H-1B Nurse Requirements Open Door for More Approvals

In a policy memorandum dated July 11, 2014, USCIS has provided some guidance and clarifications as to the applicable standards for adjudication of H-1B petitions for nurses.   While USCIS continues to maintain the position that most nurses may not qualify for an H-1B due to the fact that a bachelor’s degree is not normally requires, the policy memorandum highlights specific situations and factors which would help a determination that a specific nursing position is specialized enough to warrant an H-1B.    We welcome this (overdue) policy memorandum as it provides a clearer guidance as to which types of nursing positions may qualify for an H-1B work visa.

Background of H-1B for Nurses

Most of our readers are aware that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation (normally, a position requiring a bachelor’s degree or higher).   The government has taken the position that most registered nurse (RN) positions do not qualify as a specialty occupation because such positions do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those particular positions.   There are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specific specialty as the minimum for entry into these particular positions.

As a result, there has often been ambiguity as to whether a specific nursing position would qualify for an H-1B work visa or not.   Our office, for example, has handled variety of nursing H-1B cases and so far the success factor has been a showing of advanced or highly-specialized nursing requirements.

The Policy Memorandum Recognized Shift Towards Employers Increasingly Requiring Nurses with Bachelor’s Degree or Higher

The policy memorandum reiterates the general position that nursing positions do not normally require a bachelor’s degree and, as a result, would not fit within the scope of the H-1B work visa.  At the same time, however, the policy memorandum makes an important recognition that the private sector in the U.S. is increasingly showing a preference for “more highly educated nurses.”     The policy memorandum goes on to make a specific distinction that certain nursing positions would actually meet the “specialty occupation” definition and would qualify for H-1B.   This is an important step towards recognizing H-1Bs for nurses.

At the same time, the policy memorandum also specifies that advance practice registered nurse (APRN) positions use skills, experience and knowledge which are consistent with the “specialty occupation” standard and for APRN nursing positions, an H-1B should be approved.  Specific (but not complete) examples of APRN occupations cited in the policy memorandum which should qualify for H-1B are Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner and Certified Registered Nurse Anesthetist.

The policy memorandum also includes some suggestions on the type of factors to be presented and considered when adjudicating an H-1B application for a nurse-type position.    In addition to normal employer and industry practices, the adjudicator may consider advanced certification requirements, ANCC Magnet recognition status, clinical experience requirements, training requirements and wages relative to others in the position.     This kind of list with suggested factors/evidence is very helpful in preparing a strong H-1B work visa application for a nursing position.

Conclusion

We welcome this policy memorandum as it provides an overdue clarification of the H-1B standards as they apply to nursing positions.    The policy memorandum recognizes shifts in the private industry marketplace where more and more nurses perform more complex skills and more and more employers seek nurses with advanced level of skills and education.    The arguments and factors outlined in the policy memorandum should provide more clarity and, hopefully, certainty in the H-1B application process for employers who are seeking to sponsor an H-1B work visa for a nurse.

We are happy to consult employers who are considering filing for H-1B petitions for nurses.  Our office focuses its practice on employment-based immigration matters and we have handled a variety of immigration cases for hospitals, medical facilities and similar health-care related employers.    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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Current PERM Processing Times (July 8, 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 July 8, 2014.

Current PERM Processing Times

Most notable is the decrease in the processing time for PERM applications – from six to four-five months for regular PERM cases.     The processing time of PERM applications in audit remains unchanged compared to our prior report from a month ago.   The processing times, as reported by DOL, are as follows:

  • Regular processing: February 2014.  DOL is processing PERM applications with priority dates of July 2014.  Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    There is another (welcome) improvement in the processing time for PERM cases of about one month, compared to the June 2014 report.    We are hopeful that the trend of improving processing times would continue.
  • Audited applications: February 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of February 2013.  There is change in the reported date of only one month, which means that this processing time has remain unchanged compared to the June 2014 report.   Accordingly, audited PERM applications are processed approximately 17-18 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): July 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in July 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.

Conclusion

The July 2014 PERM processing times report shows that the PERM processing times start to decrease and improve slightly compared to a month ago.    Over the past several months, we saw continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that this one-month improvement in the PERM processing times would continue the trend of improving PERM processing times..

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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August 2014 Visa Bulletin – EB-2 India Moves Forward by Four Months; EB-3 ROW and FB-2A Remain Unchanged

The U.S. State Department has just released the August 2014 Visa Bulletin which is the eleventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant (four month) forward movement in EB-2 India, the significant (two years) forward movement in EB-3 China and the lack of any movement in EB-3 ROW and FB-2A.

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

Below is a summary of the August 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 advances by almost five (5) months to January 22, 2009.  EB-2 China moves forward by three  (3) months to October 8, 2009.
  • EB-3 ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China advances by over two (2) years to November 1, 2008.   EB-3 Philippines advances by one and a half (1.5) years to June 1, 2010, while EB-3 India  moves forward by only one (1) week to November 8, 2003.
  • The “other worker” categories for ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China advances by one and a half (1.5) years to July 22, 2005.   EB-3 Philippines advances by one and a half (1.5) years to June 1, 2010, while EB-3 India  moves forward by only one (1) week to November 8, 2003.

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

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

  • FB-1 ROW, China and India all move forward by three (3) weeks to April 22, 2007.   FB-1 Mexico moves forward by two (2) months to April 8, 1994 and FB-1 Philippines moves forward by one and a half (1.5) years to June 1, 2004.
  • FB-2A remains unchanged for all (after a significant retrogression two months ago) – it remains at May 1, 2012 for ROW, China, India and Philippines.  It remains at March 15, 2011 for Mexico.

EB-2 India Another Significant Forward Movement

After last month’s significant (four years) movement in EB-2 India, this month’s Visa Bulletin brings another welcome (and somewhat expected) piece of news for EB-2 India applicants.     Even though this month’s movement is of about four months, to January 22, 2009, it still allows many EB-2 India applicants to file their I-485 applications.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).   The four-year forward movement in EB-2 India last month, followed by this month’s Visa Bulletin’s four month forward movement, is done by the U.S. Department of State to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We see a number of approvals and expect more approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

In a note found in the Visa Bulletin, the Department of State warns that heavy demand (number of filings) in EB-2 India is likely to cause significant retrogression over the next few months.  Our office continues to see significant number of new I-485 filings under this category so we caution that a retrogression in EB-2 India is possible over the next several months.

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 August 2014 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 (very time-sensitive for some) opportunity to file I-485 applications.    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 August 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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