New STEM-Designated Programs

Until this revision, CIP degree codes ending in “99″ were not designated as STEM degree programs.   The Department of Homeland Security (DHS) is now proposing that “99” codes be eligible STEM degree programs – but only those where every other degree in the immediate CIP code family qualifies as an eligible STEM field.   DHS has acknowledged that since the publication of the 2008 STEM regulation allowing for 17-month Optional Practical Training (OPT) extension, students in new and important STEM degree programs in emerging fields classified under “99” CIP codes have not been able to take advantage of the OPT extension.  This revision of the STEM-designated degree programs allows students in such emerging fields to be eligible for OPT extension.

STEM-Designation Has Great Benefits

On April 8, 2008, the Department of Homeland Security published an Interim Final Rule (IFR) titled, Extending Period of Optional Practical Training (OPT) by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.    As a result, a STEM degree allows for a total OPT time of 29 months, compared to only 12 months for non-STEM degrees.

Is My Degree in a STEM-Designated Degree Program?

The first step is to find the classification number of your degree.  The Classification of Educational Programs, a database provided by the Department of Education is helpful in looking up the CIP code for a specific degree.  Also, the degree and its CIP code are often listed on page 3 of a student’s SEVIS Form I-20.

Once the degree classification is determined, an F-1 or OPT holder should look at the updated list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.

Conclusion

We welcome ICE’s decision to add new degrees to the list of STEM-designated degree programs.   We hope that the newly released updated STEM list would benefit some of the recent graduates in these new STEM programs; or, would allow graduates of such programs who may be nearing their 12-month OPT expiration date to obtain a 17-month STEM OPT extension.   Please let us know if our office can be of any assistance.

Summary of the June 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the June 2012 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China are unavailable.
• EB-3 ROW and EB-3 Mexico move forward by five (5) weeks to June 8, 2006.  EB-3 Philippines moves forward by three (3) weeks to May 22, 2006, EB-3 China  moves forward by more than four (4) months to August 8, 2005, while EB-3 India  moves forward by only one (1) week to September 15, 2002.
• The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by five (5) weeks for ROW and Mexico, while EB-3 Philippines moves forward by three (3) weeks to May 22, 2006.  It also moves forward by one (1) week for India to September 15, 2002.

Summary of the June 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the June 2012 Visa Bulletin with respect to family-based petitions:

• FB-1 moves forward (again, for ninth consecutive month).  FB-1 ROW, China and India all move forward by seven (7) weeks to June 22, 2005.   FB-1 Mexico remains unchanged at May 15, 1993 and FB-1 Philippines remains unchanged at July 1, 1997.
• FB-2A moves forward by six (6) weeks to January 1, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by seven (7) weeks to December 8, 2009.
• FB-2B ROW, China and India move forward by seven (7) weeks to April 15, 2004.  FB-2B Mexico moves forward by one (1) month to January 1, 1992 and FB-2B Philippines remains unchanged at December 8, 2001.

Unavailability in EB-2 India and China Caused by High Demand/Number of Filings; No Forward Movement (or Approvals) Expected Until at Least October 2012; Slow Movement  for EB-3; Continued Forward Movement in FB-1

One of the major headlines this month, in the ninth Visa Bulletin for the Fiscal Year 2012 is the unavailability in the EB-2 India and China categories.  This follows the dramatic retrogression in the previous, May 2012, Visa Bulletin.   Although this unavailability does not come as a surprise to our clients and readers who may have seen our repeated alerts over the past few weeks, the unavailability would certainly cause disappointment to many I-485 Indian or Chinese applicants.

As many of our clients and readers remember, the May 2012 Visa Bulletin indicated a significant retrogression for EB-2 India and China.   Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive.  Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status.   Unfortunately, the potential amount of such “upgrade” demand is not currently being reported, but, according to the Department of State,  it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized.  Therefore, the Department of State had to make the China and India Employment Second preference category “Unavailable” in early April and is expected to remain so until October 1.

In addition to the notable EB-2 India and China columns, this Visa Bulletin also shows continued forward movement in the FB-1 category which has been moving steadily for the past several months.    We continue to see the FB-2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 India and China Predictions

According to the Department of State, the EB-2 India and China categories will remain unavailable for the rest of the fiscal year which ends on September 30, 2012.   The first visa bulletin for the new fiscal year, starting on October 1, should be published somewhere around September 10-15th.

All indications are that visa numbers will once again become available for EB-2 India and China.   However, the Department of State, in an explicit note in the June 2012 Visa Bulletin warns that although they will make every attempt to move the cutoff dates back to May 1, 2010, it may take until Spring of 2013 to do so.

EB-1 and EB-2 Rest of World (ROW) May Be Limited by Introducing a Cutoff Date

The Department of State has reiterated their comment from the May 2012 Visa Bulletin that it is possible that a cutoff date may be introduced for EB-1 and EB-2 ROW cases.    The reason is, not surprisingly, the heavy demand in numbers over the past few months, mainly by EB-2 India and China applicants.     Based on the current rate of demand, according to the Department of State, it may be necessary to establish a cutoff date for the EB-1 and/or EB-2 ROW categories.

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 June 2012 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.

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 May 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 18 months (decrease, or improvement, of three months compared to our last report as of March 1, 2012);
• L-1 appeal takes 22 months (no change);
• I-140 EB-1 Extraordinary Ability takes 14 months (improvement of one month), Multinational Manager or Executive takes 21 months (no change) while EB-1 Outstanding Professor or Researcher category is current (defined as 6 months or less);
• I-140 EB-2 (Advanced Degree) takes 21 months (improvement by 3 months) while EB-2 (NIW) is current (improvement by two or more  months); and
• I-140 EB-3 Skilled Worker takes 34 months (improvement by 1 month) while EB-3 Other Worker is current (6 months or less) on appeal (no change).

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.

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.   Please read our article on the Six-Month Club for more information.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 with expiration date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.  Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Travel Preparations — Ensure Passport Has Sufficient Validity

We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity which is greater than the expiration date of their petition approval notice.    Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her I-94 card expiration date, as noted by the CBP officer and to address any questions or concern at that time with the CBP officer.    Addressing issued at a later time is usually complicated (and often, costly).

Conclusion

The Form I-94 expiration date is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued a Form I-94 with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.

No Green Card Approvals Until October 1, 2012

As a result of reaching the annual limit in the visa numbers in the EB-2 India and China categories, no new green cards numbers will be authorized by the Department of State for this fiscal year.   Starting October 1, 2012, when the new fiscal year starts (and the quotas reset), the government will continue processing and approving pending cases.

Pending I-485 Cases Unaffected; New I-485 Cases Can Still be Filed

Even though no new green card numbers will be authorized (and green cards approved), pending I-485 cases will remain unaffected — they will be subject to preadjudication and will remain pending until a visa number becomes available.   Additionally, applicants who have current priority dates as of the April and May 2012 Visa Bulletin would still be able to file I-485 adjustment of status applications.

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 alert or the May 2012 Visa Bulletin.  Finally, if you already haven’t already, 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.

Historical Trend in the Number of Naturalizations

The number of persons naturalizing in the United States increased to 694,193 in 2011 from 619,913 in 2010 following a decrease from 743,715 in 2009 and 1,046,539 in 2008. The record number of naturalizations in 2008 followed a surge in applications in 2007 in advance of an application fee increase and efforts to encourage eligible immigrants to naturalize. The annual number of applications for naturalization decreased from 2007 to 2008 and increased again after 2008 to 760,000 in 2011.

Region and Country of Birth of Naturalized Applicants

Thirty-six percent of persons naturalizing in 2011 were born in Asia, followed by 31 percent from North America, and 12 percent from Europe. Mexico was the leading country of birth of persons naturalizing in 2011 (14 percent). The next leading countries of origin of new citizens in 2011 were India (6.6 percent), the Philippines (6.1 percent), the People’s Republic of China (4.7 percent), and Colombia (3.3 percent). The 10 countries with the largest number of naturalizations accounted for 48 percent of all new citizens in 2011.

Leading States and Metropolitan Areas of Residence

Seventy-three percent of all persons naturalizing in 2011 resided in 10 states. California was home to the largest percentage of persons naturalizing (22 percent), followed by Florida (13 percent) and New York (11 percent). Fifty-one percent of all new citizens in 2011 lived in 10 metropolitan areas.   The leading metropolitan areas of residence were New York-Northern New Jersey-Long Island, NY-NJ-PA (14 percent), Los Angeles-Long Beach-Santa Ana, CA (9 percent), and Miami-Fort Lauderdale- Pompano Beach, FL (8 percent).

Years in Immigrant Status

Persons naturalizing in 2011 spent a median of six years in legal permanent resident status before becoming citizens. Immigrants born in Africa spent the least time in legal immigrant status (5 years), followed by immigrants from Asia, Europe, and South America (6 years), Oceania (7 years), and North America (10 years). The median years spent in LPR status was unchanged overall in comparison to 2010, but increased by one year for persons born in Asia and South America (meaning that folks waited longer before they applied for citizenship).

The H-1B season is well underway and we have received the second “official” update on the FY2013  cap-subject H-1Bs filed since April 2 for both the Vermont and California Service Centers.   As of April 13, 2012, USCIS has received approximately 20,600 H-1B petitions counting toward the 65,000 cap.   This suggests a rate of filings of approximately 3,200 regular cap cases per week.   Similarly, as of April 9, there were approximately 9,700 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).   This suggests a rate of filings of approximately 1,500 master’s cap cases per week.

This report, the second of the fiscal year, suggests a continued (but not as dramatic as the increase seen during last week’s report) demand and strong rate of H-1B filings compared to last year.  We do not yet have sufficient information to develop a more reliable trend of the rate of filings, but we hope to be able to do so within a week or two.

Comparison to the Last H-1B Season (FY2012)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for 3-6 months.

Last year, during the FY2012 H-1B filing season, by April 8th, there were 5,900 regular cap H-1B petitions filed.   Last year’s April 8th count of Master’s H-1B cap filing was 4,500.   This year’s 20,600 and 9,700 filings for the regular and master’s caps, respectively, for the first two weeks of the H-1B filing season suggests that there is dramatic increase in the number of H-1Bs filed early in the H-1B season.   Based on this information, and assuming there is no significant  increase in the rate of filings, we anticipate that this year’s H-1B season would extend for between 3-6 months.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2013 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

The H-1B season is well underway and we have received the first “official” updates on the FY2013  cap-subject H-1Bs filed since April 2 for both the Vermont and California Service Centers.   As of April 9, 2012, USCIS has received approximately 17,400 H-1B petitions counting toward the 65,000 cap.   Similarly, as of April 9, there were approximately 8,200 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).

This report, the first of the fiscal year, suggests a dramatic (more than double) demand in the rate of H-1B filings compared to last year.  We do not yet have sufficient information to develop a more reliable trend of the rate of filings, but we hope to be able to do so within a week or two.

Comparison to the Last H-1B Season (FY2012)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for 3-6 months.

Last year, during the FY2012 H-1B filing season, by April 8th, there were 5,900 regular cap H-1B petitions filed.   Last year’s April 8th count of Master’s H-1B cap filing was 4,500.   This year’s 17,400 and 8,200 filings for the regular and master’s caps, respectively, for the first few days of the H-1B filing season suggests that there is dramatic increase in the number of H-1Bs filed early in the H-1B season.   Based on this information, and assuming there is no dramatic increase in the rate of filings, we anticipate that this year’s H-1B season would extend for between 3-6 months.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2013 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

Summary of the May 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2012 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move back, or retrogress, by two years and nine and a half months to August 15, 2007.
• EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to May 1, 2006, EB-3 China  moves forward by one (1) month to April 1, 2006, while EB-3 India  moves forward by only one (1) week to September 8, 2002.
• The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by three (3) weeks for ROW, Mexico and Philippines to May 1, 2006.  It also moves forward by one (1) week for India to September 8, 2002.

Summary of the May 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2012 Visa Bulletin with respect to family-based petitions:

• FB-1 moves forward (again, for eighth consecutive month).  FB-1 ROW, China and India all move forward by one (1) month to May 1, 2005.   FB-1 Mexico moves forward by one (1) week to May 15, 1993 and FB-1 Philippines moves forward by one (1) week to July 1, 1997.
• FB-2A moves forward by five  (5) weeks to November 15, 2009 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by six (6) weeks to October 15, 2009.
• FB-2B ROW, China and India move forward by five (5) weeks to February 22, 2004.  FB-2B Mexico remains unchanged at December 1, 1992 and FB-2B Philippines remains unchanged at December 8, 2001.

Retrogression in EB-2 India and China Caused by High Demand/Number of Filings; No Forward Movement Expected Until at Least October 2012; Slow Movement  for EB-3; Continued Forward Movement in FB-1

One of the major headlines this month, in the eighth Visa Bulletin for the Fiscal Year 2012 is the retrogression in the EB-2 India and China cutoff dates — all the way back to August 15, 2007.   Although this retrogression should not come as a surprise to our clients and readers who may have seen our repeated alerts over the past few weeks, the retrogression would certainly cause disappointment to many I-485 Indian or Chinese applicants.

Unfortunately, the number of filings and our predictions for the Visa Bulletins for the rest of the year (see below) suggest that there should not be any forward movement expected in EB-2 India and China for the rest of the fiscal year (until the October 2012 Visa Bulletin).   At the same time, EB-3 continues steady (but slow) forward movement, especially EB-3 India which has been advancing by only one week per month for months.  EB-3 India is expected to continue its (very) slow movement.

This Visa Bulletin also shows continued forward movement in the FB-1 category which has been moving steadily for the past several months.    We continue to see the FB-2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 India and China:  USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this retrogression in the EB-2 India and China categories,  USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at the Department of State to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Visa Bulletin Cutoff Date Predictions

The May 2012 Visa Bulletin also provides some predictions on the movement of the cutoff dates for the next few months (presumably for the rest of the fiscal year).

Employment-based Categories

• EB-1 – expected to remain current;
• EB-2 ROW – there is a potential that EB-2 ROW  may require a cutoff to be established due to decrease in the number of available visa numbers for the fiscal year;
• EB-2 India and China – no forward movement, possibility to become “Unavailable,” effectively stopping all approvals for EB-2 India and China immigrant cases;
• EB-3 ROW – three to five weeks at a time;
• EB-3 China – up to six weeks;
• EB-3 India – up to two weeks; and
• EB-3 Mexico and Philippines – up to five weeks.

Family-based Categories

• FB-1 – four to six weeks at a time;
• FB-2A – up to two and half months;
• FB-2B – three to six weeks;
• FB-3 – three to six weeks; and
• FB-4 – three to five weeks.

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 May 2012 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.

Comparison to the Last H-1B Season (FY2012)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  While it is too early to provide an estimate of when the H-1B cap would be reached for this fiscal year, all indications are that the cap would remain open for 3-6 months.

Last year, during the FY2012 H-1B filing season, by April 8th, there were 5,900 regular cap H-1B petitions filed.   Last year’s April 8th count of Master’s H-1B cap filing was 4,500.   This year’s unofficial estimate of 17,000 and 5,000 filings for the regular and master’s caps, respectively, for the first few days of the H-1B filing season suggests that there is dramatic increase in the number of H-1Bs filed early in the H-1B season.   Based on this information, and assuming there is no dramatic increase in the rate of filings, we anticipate that this year’s H-1B season would extend for between 3-6 months.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2013 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

Department of State Confirms EB-2 India and China “Internal” Retrogression Even Before the Official May 2012 Visa Bulletin is Released

Mr. Charlie Oppenheim, the Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later.  It should be noted that immigrant visa applicants processing in the month of April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.

USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this “internal” retrogression, Mr. Oppenheim has confirmed that USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Conclusion

Many EB-2 India and China I-485 applicants will be disappointed by the fact that no new I-485 approvals will come for at least several months.   However, the fact that EB-2 India and China cutoff dates moved so significantly over the past several months has allowed many applicants to file their (and their families’) I-485 applications.   Among the immediate benefits of an I-485 filing are advance parole and work permit documents, in addition to ability to port a pending I-485 to a new employer under AC21.

As we enter the last 20-25 days of the current cutoff dates, we urge those EB-2 India and China applicants who are eligible to file their I-485s due to a current (as of the April 2012 Visa Bulletin) priority date to aim to do so as soon as possible and in any case before the end of the month.    Please contact us if we can be of any assistance in the process.

Nonimmigrant Visas — Fees Increase

The Department of State is required to recover, as must as possible, the cost of processing a visa application and a stamp through the collection of application fees.  According to the Department of State, for a number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas. As a result, the nonimmigrant visa fee increase will support the addition and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand.

Although most categories of nonimmigrant visa processing fees will increase, the fee for E visas (treaty-traders and treaty-investors) and K visas (for fiancé(e)s of U.S. citizens) will decrease.

Immigrant Visas – Fees Decrease

Because of a reallocation of costs associated with immigrant visas, all categories of immigrant visa processing fees will decrease as shown below.  Some of the fee decreases are fairly significant.

Conclusion

We welcome the Department of State’s efforts to make its services more affordable and for its fees to reflect the actual cost of services provided.   It should be noted that it has been thought that some of the weaker demand in certain immigration visa categories, during the past few years, has been thought to be due to the high fees.    By lowering the immigrant visa fees, the Department of State may be addressing concerns that some of its services are pricing some applicants out.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2013) starting on October 1, 2012.

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

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   On one hand, the US economy and hiring is improving; on the other hand, it is not improving that fast.    While we see higher H-1B work visa demand this year, compared to last, we do not anticipate that the H-1B cap will  be reached in the first few weeks of this year’s filing season.

Throughout the H-1B season, we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us.

Long Term Trends

The unauthorized immigrant population increased from 2–4 million in 1980 to 8.5 million by 2000.  After 2000, the number of unauthorized immigrants continued to increase. Previous estimates suggest a peak in about 2007 of 11.8 million or 12.0 million (variation is based on data from different surveys).    The January 2011 report of 11.5 million suggests a slight decrease over the past few years.

Period of Entry

Of the 11.5 million unauthorized immigrants in 2011, 1.6 million (14 percent) entered the United States on January 1, 2005 or later.  Larger numbers came during 2000-2004 (3.3 million or 29 percent) and 1995–1999 (3.0 million or 26 percent). Fewer came between 1990–1994 (1.6 million or 14 percent) or in the 1980s (1.9 million or 17 percent).

Estimates by Region and Country of Birth

An estimated 8.9 million (77 percent) of the total 11.5 million unauthorized immigrants living in the United States in 2011 were from North America, including Canada, Mexico, the Caribbean, and Central America.  The next leading regions of origin were Asia (1.3 million) and South America (0.8 million).  Between 2000 and 2011, the greatest increase in the unauthorized population occurred among natives of North America (2.8 million).

Mexico continued to be the leading source country of unauthorized immigration to the United States.  There were 6.8 million unauthorized immigrants from Mexico in 2011, representing 59 percent of the unauthorized population.   The next leading source countries were El Salvador (660,000), Guatemala (520,000), Honduras (380,000), and China (280,000).

Estimates by State of Residence

California remained the leading state of residence of the unauthorized immigrant population in 2011, with 2.8 million.  The next leading state was Texas with 1.8 million unauthorized residents, followed by Florida (740,000), New York (630,000), and Illinois (550,000).

Created in 2002, the Student and Exchange Visitor Information System (SEVIS) is used to track and monitor foreign students (F-1 visa holders) and exchange visitors (J-1 visa holders), as well as their accompanying dependents (F-2 and J-2 visa holders).  While SEVIS has streamlined many formerly cumbersome data reporting requirements and improved information accuracy, there are occasions where the data contained in a SEVIS record is either incorrect or in need of an update because of a student or visitor’s changing circumstances.  A remedying correction or update is typically obtained through a SEVIS data fix.

When Is a Data Fix Needed?

Oftentimes, an error or change to a SEVIS record can be handled by the school’s Designated School Official (DSO).  Many entries in the SEVIS system have a link located next to the information in the SEVIS record that allows as DSO to independently correct the error or make the appropriate change.  When this particular function is not working, or if a change needs to be made for which there is not a link to make the correction, the DSO should contact the SEVIS help desk to request a data fix.

There are a variety of reasons a DSO may need to request a data fix, but the most frequent requests are in connection with a student’s employment eligibility.   Common data fix requests include the following:

• A student needs a new Form I-20 to present for I-9 verification to begin employment.
• A STEM (Science, Technology, Engineering & Mathematics) student needs to apply for an extension o f his or her Optional Practical Training (OPT).
• A student eligible for “cap-gap” relief – i.e., the gap period between the expiration of a student’s F-1 status (and related employment eligibility) and the commencement of the student’s H-1B status – needs to apply for an extension of his or her status and work eligibility.
• A student has properly changed to another nonimmigrant or immigrant status and SEVIS needs to be updated accordingly.

How to Request a SEVIS Data Fix?

A SEVIS data fix can be requested by either calling the SEVIS Help Desk at (800) 892-4829, or by emailing SEVIS at SEVIShelpdesk@eds.com.  Once the request is placed with the SEVIS help desk, the DSO will be issued a help desk ticket with a unique reference number.  The help desk will then commence working on the data fix.   SEVIS data fix processing times can vary depending on the nature of the information that must be changed or updated.

Can a Data Fix Requests be Expedited?

Placing a request with the Help Desk should be the DSO’s first step, regardless of the urgency of the matter, as the help desk ticket number is required to escalate any request.   If a data fix is urgently required, the DSO should first email the SEVIS help desk to request a data fix, followed by an email to toolbox.SEVIS@dhs.gov to request an expedited fix.  The help desk ticket number should be included in the email for tracking purposes.

If for any reason a student urgently needs a new Form I-20, and a data fix cannot be processed quickly enough, the student can use his or her most recent Form I-20 together with a letter from the DSO that explains that the student is in status, and that a more current Form I-20 will be provided upon the completion of the data fix.

The SEVIS system has been designed and subsequently upgraded to enable a DSO to resolve most errors or changes needed in a SEVIS entry.  For those instances when outside assistance is needed, a data fix request to the SEVIS Help Desk is an excellent resource to efficiently correct a SEVIS entry.

Conclusion

Our office often assists F-1/J-1 holders whose SEVIS records have incorrect information and are attempting to obtain a certain F-1/J-1 benefit and most often the issue can be resolved either by the DSO directly or by requesting a data fix.   Unfortunately, the procedure of correcting a SEVIS record is entirely controlled by the DSO and his or her schedule and responsiveness may affect the outcome of a particular situation.    Please do not hesitate to contact us if we can be of any assistance with a situation relating to a SEVIS record – we may be able to provide assistance in making sure an issue is resolved quickly.

EB-2 India and China Expected to Retrogress to August 2007

During an AILA event today, March 16, Mr. Oppenheim indicated that he will likely retrogress India and China Employment-Based Second Preference (EB-2) cutoff dates to around August 2007, effective with either the May or June 2012 Visa Bulletin.   He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

Mr. Oppenheim’s comments confirm our own predictions that a slowdown or retrogression in EB-2 India/China is imminent.   As a result of this, we urge all EB-2 India and China applicants who have a current priority date as of the March or April 2012 Visa Bulletin to immediately consider filing for an I-485 application.   It is likely that this window of filing opportunity for many EB-2 India and China applicants will close starting May 1st.

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 current  Visa Bulletin or our thoughts about cutoff dates for the next few months.  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.

The Report:   USCIS Has Changed L-1 and H-1B Adjudication Standards

The report, Analysis: Data Reveal High Denial Rates For L-1 and H-1B Petitions,  dated February 2012, claims that USCIS has (silently) changed the adjudication standards for L-1 and H-1B petitions which has, between 2007 and 2011, affected dramatically the outcome of the adjudications of such petitions.   The report analyzes trends in rates of RFEs and denials between 2007 and 2011 and notes that,

“The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy.”

Key Findings of the Report

Among the key findings of the report are the following:

• denial rates for L-1B petitions rose from 7% in FY2007 to 22% in FY2008 (without changes in the relevant laws or regulations), and then stayed relatively high at 26%, 22% and 27% for fiscal years 2009, 2010 and 2011, respectively;
• denial rates for H-1B petitions increased from 11% in FY2007 to 29% in 2009, but has subsequently decreased to 21% in 2010 and 17% in FY2011;
• denial rates for L-1A (international managers) petitions increased from 8% in 2007 to 14% in 2011;
• RFE rates for L-1B rose from 17% in FY2007 to 49% in FY2008 and to 63% in FY2011 (the report also reminds that the RFE rate in FY2004 was 2%);
• RFE rates for H-1B rose from 4% in FY2004 to 18% in FY2007 to a high of 35% in FY2009 (the most recent number is 26% RFE rate for FY2011);
• RFE rates for L-1A increased from 4% in FY2004 to 24% in FY2007 and to a current 51% in FY2011.

Denial and RFE Rates Show Alarming Trends; Some Rates Appear to be Decreasing

The rate of RFEs and denials is alarming because it does not seem to be supported by substantive changes in the law or regulations.    Some of the increased RFE/denial rates may be explained due to the slowing economy, and lack of ability of petitioners to show placement or available work.   Additionally, some of the increase in -1B cases may be attributed to increased scrutiny (and the Neufeld Memo) on IT consulting companies.    Nonetheless, the sharp increase in the RFE/denial rates for the H-1 and L-1 petitions are alarming for many US companies who rely on foreign talent to continue to provide their products and services to the US market.

The good news, if any, is that the RFE/denial rates, even though they may be very high historically, seem to be leveling off or decreasing.   Our office has witnessed these increased rates (although perhaps not by the magnitude highlighted in the report) and we can share some of our clients’ concerns that one of the main concerns of a US company sponsoring a foreign worker is predictability and fair rules.     Our hope is that USCIS will provide clear guidance and consistent application of their own rules and policies to allow fair but consistent application processes.

Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

Throughout the past few months we have been able to assist many clients in preparing and filing their I-485 adjustment of status applications or in processing their immigrant visas through the National Visa Center.    One of the most common questions we get from current and prospective clients is, “How are the cutoff dates for EB-2 India/China going to move in next month’s Visa Bulletin?”   This is especially true after the most recent Visa Bulletin, the April 2012 Visa Bulletin was released earlier this week showing no movement in the EB-2 India/China categories.

EB-2 India/China Category Outlook — No Major Forward Movement, Possible Retrogression

Before we share our own thoughts on the EB-2 India/China outlook, an important disclaimer is necessary.   This is our own opinion and estimate.  It is based on our first hand experience in analyzing the Visa Bulletin for months/years,  by talking with other stakeholders and by gathering official and unofficial public information from Department of State and Citizenship and Immigration Service.    There are so many factors and datapoints (many of which we non-public information) that go into determining the cutoff dates, that we may simply be wrong in our assumptions.

With this in mind, we think that the cutoff dates for EB-2 India and China would remain steady for the rest of the fiscal year (ending on September 30).   Judging by a note published as part of the February 2012 Visa Bulletin and by comments by Charles Oppenheim from January 19, 2012, it seems that the forward movement in EB-2 India and China for this fiscal year is coming to an end.    Mr. Oppenheim had indicated that if visa number demand (I-485 and NVC case filings) continues to be strong over January, February and March, he would need to hold the movement and, possibly, retrogress.

Given the fact that there has been notable demand, indicated by I-485 filings, and given that Mr. Oppenheim has decided to keep the April 2012 Visa Bulletin unchanged for EB-2 India and China, it may be assumed that Mr. Oppenheim has seen sufficient number of filings in order to ensure that no visa numbers go unused for the remainder of the fiscal year.     While it is possible some additional forward movement over the next few Visa Bulletin editions, such movement in EB-2 India/China, if any, is likely to be very small.

Current Priority Date?

Given the possibility of slowdown and/or retrogression in the EB-2 India/China cutoff dates, our office stands ready to assist in the applicable process to take advantage of the recent significant forward movement in the cutoff dates across many of the categories, including applicants in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the April 2012 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 April 2012 Visa Bulletin or our thoughts about cutoff dates for the next few months.  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.

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 March 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 21 months (decrease, or improvement, of one month compared to our last report as of December 1, 2011);
• L-1 appeal takes 22 months (no change);
• I-140 EB-1 Extraordinary Ability takes 15 months (improvement of one month), Multinational Manager or Executive takes 21 months (no change) while EB-1 Outstanding Professor or Researcher category takes 13 months (increase, or delay, of three months);
• I-140 EB-2 (Advanced Degree) takes 24 months (improvement by 8 months) while EB-2 (NIW) takes 8 months (improvement by two months); and
• I-140 EB-3 Skilled Worker takes 35 months (no change) while EB-3 Other Worker is current (6 months or less) on appeal (no change).

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.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2013 starting on October 1, 2012.

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

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

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

The earliest date on which cap-subject H-1B petitions to be counted under the FY2013 H-1B cap is April 1, 2012 (technically, this year it is April 2, 2012 because April 1 falls on Sunday).  By law, the earliest starting employment date for petitions approved under the FY2013 H-1B cap is October 1, 2012.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

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

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

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

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

Projections About This Year’s H-1B Cap

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

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until November of 2012.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

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

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2012 fiscal year the cap was hit in November 2011 , we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 2, 2012.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

Our office receives an increasing number of inquiries about what kind of activities by foreign nationals are permitted in connection with the U.S. elections and this article seeks to provide some general guidance.   Please note that this general information article is not legal advice and we are happy to provide individual consultations and to analyze a specific case.

The Law

The relevant law is the Foreign Agents Registration Act (FARA) which was first enacted in 1966 and initially aimed to minimize foreign intervention in U.S. elections by establishing a number of limitations on foreign individuals.  In 1974, the prohibitions were incorporated into the Federal Election Campaign Act (FECA).

FECA prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.  It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them.  Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment.

Who Is a Foreign National?

The prohibition is very broad, but there are exceptions.  Although a “foreign national” is defined as broadly as a foreign person or entity, persons with green cards are excluded from the definition of a foreign person and should be eligible to contribute money and/or services to a political campaign.

Money

Based on the definition of “foreign national” and the exception for green card holders, it follows that only green card holders can contribute financially to the political campaign of a presidential candidate.   The limits of such financial contributions are outside of the scope of this article.

It should also be noted that it is unlawful to provide assistance to foreign nationals making contributions to political campaigns in violation of FECA.  It is also illegal to knowingly solicit, accept, or receive contributions or donations from foreign nationals.

Contribution of Services

Some foreign nationals who do not have green cards can nonetheless help a political campaign via voluntary non-monetary contribution of services.  The Act provides that that the “volunteer” exemption applies as long as the foreign national performing the service is not compensated by anyone.

The “non-compensated” rule is very vague, and as a result, the Federal Election Commission has addressed its nuances in a couple of advisory opinions.  In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign.  By contrast, the decision in Advisory Opinion 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign.    During the 2008 campaign, FEC ruled that Sir Elton John (a foreign national) organizing a $2.5 million fundraiser for Hillary Clinton’s campaign was “volunteer service.”

Conclusion

As the 2012 election season gets underway and more and more people are engaged in some capacity for some of the candidates’ campaigns, it is important to understand the restrictions imposed on foreign nationals from engaging and contributing to the political process.    Our office is happy to provide consultations or to help analyze a specific situation pertaining to a foreign national and the U.S. election process.

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 February 15, 2012.

PERM Processing Statistics

DOL has provided some useful statistics on the number of PERM cases processed for the FY2012 fiscal year (starting October 1, 2011) until February 15, 2012.   During this period, DOL has received 17,700 cases (in comparison, DOL had received 13,000 PERM applications as of January 6, 2012, suggesting a rate of approximately 800 PERM applications filed every week, at least for the past few weeks).

During this period, the government has also processed 16,555 PERM cases.  This suggests that DOL is more or less keeping up with the rate of filings and further suggesting that there should not be major change in the regular PERM processing times in the short term (see below for the current PERM processing times).   Out of the 16,555 PERM cases processed so far this fiscal year, 12,350 were certified, 3,312 were denied and 893 were withdrawn.    Out of the 24,400 “active” PERM cases as of February 15, 2012, about 60% were at analyst review, 26% were at audit review and 8% were on appeal.

Current PERM Processing Times

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

• Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is slight delay (of one month) in the processing times, compared to the January 2012 report.  Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: June 2011.  DOL is processing PERM audits which have a priority date of June 2011.  There is improvement (of one month) in the date for this type, suggesting that PERM audits should take a month less than previously.  Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration): August 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of August 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the January 2012 report, this category has improved the processing time by four months.   Accordingly, PERM requests for reconsideration are processed approximately 16-18 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The February 2012 PERM processing times report shows a very delay in the regular and appealed PERM processing times, while there is a slight improvement in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the spring.

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.

Our office handles a substantial number of such H-1B petitions and H-1B visa stamp applications and while we can confirm that a well-prepared H-1B stamping application has a very good chance of success, nonetheless, the scrutiny and level of review/delay has increased.

US Consulate in Hyderabad, India Introduces Attestation Document for H-1B Workers

We have learned that the US Consulate in Hyderabad has started requiring certain H-1B applicants (most likely who would be working for IT consulting companies) to sign a notarized statement attesting to a number of facts in relation to their third-party client placement and employment.     See a real (but redacted) attestation document.

H-1B Applicants in Hyderabad Must Attest to the Terms of Their H-1B Employment

The attestation seems to require the H-1B worker to provide or confirm (under oath and under penalty of permanent bar on admission to the United States) a number of facts relating to the H-1B employment.    First, the H-1B worker must confirm that he or she has read the Wilberforce pamphlet which has been provided to them by the Consulate.   The Wilberforce pamphlet is a document which is usually given out by U.S. Consulates to certain visa applicants informing them of their rights under the human trafficking and labor laws in the United States.

In addition, the H-1B workers must attest to key facts describing the employment – including name of end client, identities and contact information of supervisors, terms of employment and other facts describing the employer-employee relationship between the sponsor employer and the H-1B worker.

Importantly, the H-1B worker submits the statement under oath and subject to a permanent ban on entering the U.S. for providing false information.   Since the information required in the attestation often comes from the H-1B sponsor employer, the fact that the H-1B worker has to attest to facts to which he/she may not have direct knowledge should cause an H-1B worker to pause and ensure that all information is correct before signing his or her name.

Conclusion

It seems that the H-1B worker attestation introduced by the US Consulate in Hyderabad is a new approach in the H-1B visa stamping procedure — at least for Hyderabad.   We do not have direct reports of this kind of attestation being used by other Consulates; however, it is possible the use may spread.   We hope that this kind of attestation is limited only to cases in which the employment terms and the employer-employee relationship is not amply documented.   When the H-1B sponsor is willing and able to document amply the facts and the terms of the H-1B employment at a third-party client site, this attestation should not be needed.

Have you received or have been asked to sign similar attestation?   Please let us know.

We will continue to monitor developments on this topic and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   While a Canadian citizen TN worker may apply for TN classification at the border,  Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     After obtaining a TN visa from the Consulate, a Mexican citizen may apply for admission in TN status at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station.

Visa Validity and Proper Period of Admission

A TN visa issued to a citizen of Mexico by a U.S. Consular officer is valid for a maximum of one year.  The TN visa validity limitation is required by the U.S. Department of State’s reciprocity schedule.   The validity of the TN visa, however, does not determine the period of time that a Mexican TN worker may be admitted in TN status — a Mexican TN worker may be admitted for a period of up to three years in TN status, provided that the passport will remain valid for the entire period.

A key document a Mexican TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Mexican TN workers are given a 3-year TN status, however.    If the intended employment is of shorter duration, as described in the TN employer support letter, the TN worker is likely to be given TN status only for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Mexican TN workers to prepare a proper application for admission into the U.S. on TN status.   Unlike Canadian TN workers, Mexican TN workers must first go through the U.S. Consular visa application review process and often can document well their employment by the time they travel to the U.S. to seek admission on TN status.   Our office routinely handles Mexican TN worker applications and we are happy to assist with the preparation of proper TN visa application and admission paperwork.    Please feel free to contact us for assistance or with questions.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate that Mr. Oppenheim has shared his first-hand knowledge of the demand in the employment-based green card categories and has afforded us to get some advance sense of the movement of the priority dates and also on short- and long-term immigrant visa trends.

Summary of Mr. Oppenheim’s January 2012 Visa Bulletin Predictions

The main points are that due to lower than anticipated demand in EB filings, EB-2 India and China cutoff dates may move forward by another 6 months in the March 2012 Visa Bulletin, and then slow down (or even retrogress) over the summer.   The slow demand in EB-1 is expected to continue this year as well.

Observations of the Demand in Employment-based Visa Numbers

Unexpectedly Low EB-2 Usage and Rate of Filings.  The employment-based (EB) visa number usage has been very slow in FY2012; as a result, the Department of State (DOS) is moving the dates forward to see how many cases are out there waiting to be filed.  Mr. Oppenheim indicated that he is relying on USCIS and their estimates of the incoming EB I-485 cases (because 85 to 90% of all EB filings are I-485s filed with USCIS).  It seems that USCIS had anticipated a higher demand — the rate of I-485 adjustment of status (AOS) filings has been only 50% of their estimates.

EB-1 Demand Low.   Mr. Oppenheim assumes low usage of EB-1 numbers again this year.  A “fall-down” of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim’s projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers “spill up” to EB-1 and then down to EB-2.     Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers –  possible reasons are the impact of Kazarian on USCIS filings and demand for EB-1 EA numbers.

EB Visa Bulletin Predictions for 2012

March 2012 Visa Bulletin.   According to Mr. Oppenheim, employment-based priority dates will advance again with the March 2012 Visa Bulletin, very likely by at least a few months.    An advance of six months is possible, although an advance of one year is not likely.    Mr. Oppenheim noted that given current AOS processing times of 4-6 months, filing AOS in March is the last time to get a case possibly approved before the end of the fiscal year on September 30, 2012.

Spring, Summer and rest of FY2012. After some movement in the March (and possibly the April 2012 Visa Bulletin), Mr. Oppenheim expects to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.  Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Overall, Mr. Oppenheim’s comments are likely to create some mixed feelings among our employment-based clients.   Although EB-2 is likely to continue to move forward over the next one or two months, the long term prospects of EB-3 China and India are not good.

Our office has been very active and aggressive in preparing and timely filing I-485 adjustment of status applications for clients who have become “current” over the past few months.   We will continue to be ready to handle the anticipated forward movement in the EB-2 China and India categories.    Please do not hesitate to contact us if we can review your case or answer any questions.  We are also happy to provide a free quote for preparing and filing your I-485 application.  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.

DOL Processing Statistics (First Quarter, 2012 Fiscal Year)

PERM

During the quarter, there were 13,000 cases received, 9,400 certified, 2,400 denied and 600 withdrawn.  As of January 3, 2012, there are 21,000 PERM cases pending at DOL.   Of these, 50% are pending analyst review, 33% are in audit, 10% are on appeal, 3% are in supervised recruitment and 3% are in sponsorship verification (at filing).

From the PERM cases which are being audited, the rate of approval is 44-45%.   There are currently 7,000 cases in audit stage.

Prevailing Wage Determinations

H-1B prevailing wage determinations are issued within 60 days.   DOL has indicated that their goal by late January is to have PERM prevailing wage determinations should issued within 60 days as well.

H-1B

There were 83,000 H-1B LCA filings in the first quarter (covering 150,000 workers — one LCA can include more than 1 worker).   According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is 7% and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issued.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   A Canadian citizen TN worker may apply for TN classification at the border, while Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     Because it is not necessary for citizens of Canada to obtain a TN visa stamp,  Canadian TN workers can seek admission as TN worker at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic or at a U.S. pre-clearance/pre-flight station.

Proper Period of Admission

A citizen of Canada may be admitted to the U.S. in TN status for up to three years, assuming that the individual’s passport will remain valid throughout the admission period.     A key document a Canadian TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Canadian TN workers are given a 3-year TN stay, however.    If the intended employment is of shorter duration, as described in a TN employer support letter, the TN worker is likely to be given TN status for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Canadian TN workers to prepare a proper application for admission into the U.S. on TN status.   Our office routinely handles emergency calls from would-be-TN Canadian workers who are held at the border due to irregularity with their employer support letter or related documents.   We are happy to assist with the preparation of proper TN admission paperwork.    Please feel free to contact us for assistance or with questions.

Among the most common USCIS application types which require biometrics are I-485, Application to Adjust Status, I-131, Application for Travel Document (Reentry Permit) (please see our specialized Expedited Reentry Permit site), and I-90, Application to Replace Permanent Resident Card.   Our office handles a fair number of these applications and we hope to provide some additional background on the biometrics process.

Biometrics Codes

Normally, an ASC Biometrics Notice would contain (in the top right area), a field named “Code.”    The “Code” field is intended to indicate the type of biometrics processing to be performed.  The possible values are:

• Code 1 – fingerprinting only (10 prints);
• Code 2 – biometrics (photo, signature and index finger);
• Code 3 – fingerprints (10 prints) and biometrics (photo, signature and index finger).

USCIS has indicated that the applicable code for each biometrics appointment is determined based on the type of an application and certain relevant case factors.

Reusing/Transferring Biometrics Across Applications

A question which arises often with respect to some applicants is whether USCIS can reuse biometrics for different types of applications.   Some examples are a reentry permit applicant, who needs to renew his or her green card, or for I-485 adjustment applicant who need to apply for a reentry permit soon after I-485 approval.

The government has confirmed that they are indeed willing and able to transfer biometrics across applications; however, such flexibility is available only to military service members and their families who have unique situations regarding deployment, moving, and living overseas which affect their ability to provide fingerprints and fulfill the background check requirements.    This authority is provided by the Kendell Frederick Citizenship Assistance Act, enacted on June 26, 2008, requires USCIS to use fingerprints taken for previous immigration purposes or fingerprints provided during military enlistment to complete the required naturalization fingerprint check.

Can Biometrics Be Waived?

Unfortunately, USCIS is very clear that the collection of biometrics cannot be waived with very limited waivers available for certain medical conditions (generally, medical conditions which affect the applicant’s ability to do the biometrics).

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of January 4, 2012.  Most notable is the slight decrease (or improvement) in the processing time for regular PERM applications — to approximately three months.  The processing times, as reported by DOL, are as follows:

• Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is notable improvement (of one month) in the processing times, compared to the December 6, 2011 report.  Accordingly, regular PERM processing times should be around three months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
• Audited applications: April 2011.  DOL is processing PERM audits which have a priority date of April 2011.  There is no change in the date for this type, suggesting that there is a delay of at least one month in comparison to prior months.   Accordingly, audited PERM applications are processed approximately eight to ten months after the initial PERM was filed and the priority date established.
• Appealed applications (requests for reconsideration): April 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of April 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the December 6, 2011 report, this category has improved the processing time by two months.   Accordingly, PERM requests for reconsideration are processed approximately 18-20 months after the initial PERM was filed and its priority date established.
• “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 (see above for processing times).

Conclusion

The January 2012 PERM processing times report shows a very slight improvement in the regular and appealed PERM processing times, while there is a slight delay in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the significant improvement in PERM audit and appeal processing times over the fall would continue in the winter and spring as well.

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.

The change does not affect the substantive rules for qualifying for an immigrant visa or the underlying immigrant petitions, such as I-140 or I-130.     Applicants currently in the process of petitioning for an immigrant visa at Chennai may contact ChennaiIVU@state.gov for clarification on their status.

Number of N-400 Applications

The report breaks down, for each field office processing N-400 applications, the number of receipts, approvals, denials and pending cases for both military and non-military N-400 filings.   The statistics are provided for fiscal years 2010, 2011 and YTD 2012.

Average N-400 Processing Times

The report also provides average processing (or cycle) times for N-400 applications, calculated on a service-wide basis.   As of October 2011, the average service-wide processing time for N-400 application was 4.2 months for military N-400 case and 4.9 months for non-military N-400 case.

Please note that these average processing times are calculated on a service-wide basis, taking into account all field offices (including ones with very little load).   A more reliable (and accurate) way to obtain specific field office processing times is to check the field office processing times for N-400 cases on USCIS website.

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

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 December 1, 2011.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

• H-1B appeal takes 22 months (no change compared to our last report as of October 1, 2011);
• L-1 appeal takes 22 months (improvement, or decrease, of one month);
• I-140 EB1 Extraordinary Ability takes 16 months (no change), Multinational Manager or Executive takes 21 months (increase of one month) while EB1 Outstanding Professor or Researcher category takes 10 months (increase of one month);
• I-140 EB2 (Advanced Degree) takes 32 months (increase by three months) while EB2 (NIW) takes 12 months (decrease of one month); and
• I-140 EB3 Skilled Worker takes 35 months (increase of one month) while EB3 Other Worker is current (6 months or less) on appeal (no change).

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.