Labor Immigration Law

The Department of State (“DOS”), in an “urgent” alert dated as of September 15, 2011, has advised that due to heavy demand in the employment-based immigrant visa categories, DOS has reached the Fiscal Year 2011 annual limit of employment-based green cards.

DOS/USCIS to Stop Approving EB Immigrant Visas Until October 1

As a result of reaching the annual EB visa number limit, DOS has stopped approving immigrant visas in all of the employment-based categories.   Employment-based immigrant visas at U.S. Consular Posts are being held or returned to applicants for resubmission on or after October 1.

Similarly, DOS has advised USCIS that due to reaching the quota, no new I-485 adjustment of status applications would be approved for the remainder of the fiscal year (which ends on September 30, 2011).    There may be a limited number of I-485 approvals between now and October 1 but such approvals are based not on changes in the availability of visa numbers, but due to the fact that some I-485 cases have had their visa number already requested, authorized and allocated under the FY2011 limit.

Conclusion

Some of our clients and readers have already experienced returned passports by US Consular section around the world with notations indicating that they should resubmit their application on or after October 1 once the numbers become available again.     As a result of this memo to USCIS, we expect that the number of I-485 approvals for EB cases for the remainder of the month of September to drop to close to zero.

The good news is that after October 1, and in accordance with the October 2011 Visa Bulletin, normal employment-based immigrant visa processing would resume.    Please do not hesitate to contact us if we can be of any assistance and please feel free to subscribe to our weekly immigration newsletter to obtain related news and developments.

USCIS has released a schedule of the inventory of pending employment-based Form I-485, Application to Adjust Status.   The statistics are very recent – as of January 5, 2011 – and are very helpful to understanding the relative queue positions for employment-based adjustment of status applicants.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     The report displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.

In an article dated November 17, 2009, we wrote about the CDC reversing course and eliminating the requirement of HPV vaccine for immigrant applicants, including I-485 adjustment applications.  The new rule had an effective date of December 14, 2009, so our office has received a number of inquiries about (1) what happens with pending adjustments which may not have the HPV vaccine in the I-693 form and (2) should new adjustment applicants wait until December 14, 2009 to file their I-485.

In a recent guidance, USCIS provides clarity to these important adjustment of status questions.

Pending Adjustment Applications

USCIS has indicated that since November 13, 2009, USCIS will hold any application that would have been denied solely on the applicant’s failure to show proof of having received the HPV or zoster vaccine.  USCIS will resume adjudication on these cases after December 14, 2009, when the new rules take effect.

New Adjustment Applications

Under the new USCIS guidance, prospective applicants to adjust status  do not need to wait until December 14, 2009, to file their I-485 petitions.  Instead, the I-485 may be filed before December 14 without having proof of the HPV or zoster vaccine.  Given current processing times, it is impossible for USCIS to complete processing of the I-485 by December 14 so that once the application is due to be reviewed, the new CDC rules would have taken effect on December 14, 2009.

USCIS has released a schedule of the inventory of pending Form I-485, Application to Adjust Status.   The statistics are fairly recent – as of August 25, 2009 – and are very helpful to understanding the relative queue positions for adjustment of status applicants.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     The “Pending Employment-Based Form I-485 Report” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

 Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.

The Department of Homeland Security’s Office of Immigration Statistics has released its annual U.S. Permanent Residents: 2008 report.   The report provides a summary of the approvals of the various types of legal permanent resident (LPR) petitions.  According to the report, in 2008, a total of 1,107,126 persons became LPRs.  Of these, 58% already lived in the U.S. (and adjusted status, Form I-485).  Nearly 65% were granted LPR based on family relationship with a U.S. citizen or LPR.  The leading countries were Mexico (17%), China (7%) and India (6%).

The report provides a very useful breakdown by category and year which allows us to analyze the trends in green card approvals.  It is important to note that both 2007 and 2008 noted a slight decrease in the total number of green cards given.  In 2006, DHS recorded  1,266,129 green cards.  The decrease in 2008 is wholly attributed to a decrease in the family-based petitions. Despite this slight decrease, the numbers of green cards approved for each of the family-based categories remained fairly stable over the past three years.

The employment-based petitions in 2008 increased from 159,081 (2006) to 162,176 (2007) to 166,511 (2008).  It is interesting to note that the number of EB-1 petitions remained stable, while the number of EB-2 green cards approved increased significantly, more than 3 times from 21,911 (2006) to 70,046 (2008).   On the other hand, EB-2 recorded a significant decrease, from 89,922 (2006) and 85,030 (2007) to only 48,903 in 2008.  What do these numbers mean?  We think that they suggest a trend in that many applicants for green cards who are in EB-3 are, after many years of waiting, trying to upgrade and ultimately succeeding in obtaining their green cards approved under the EB-2 category.

We wrote last week about the April 2009 Visa Bulletin and the significant retrogression of the visa numbers in EB-3 Rest of World (ROW) category.  It is important to note that the April 2009 Visa Bulletin retrogression for EB-3 will be applied immediately, as opposed to as of April 1, 2009 (see last sentence of Item A, paragraph 1 of the April 2009 Visa Bulletin).

Also, Charles Oppenheim of the State Department has indicated that further retrogression or “unavailability” at any time cannot be ruled out.” As a result, it is highly unlikely the EB-3 category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.   As a result, immigrant visas can be issued by consular posts at interviews this month only if the consular post has obtained the visa number prior to the announcement of the cut-off. Additionally, USCIS will not approve any adjustments in the EB-3 category with cutoff dates before May 1, 2005, unless the visa number already had been assigned.

The March 2009 Visa Bulletin has been released.  Unfortunately, even though there is some forward movement in some EB categories, the progress is very small.  Many important categories have not moved forward at all this month.

• EB-1 remains current across the board.
• EB-2 China moves forward by 45 days to February 15, 2005.  EB-2 India moves forward by 45 days to February 15, 2004.
• EB-3 applicants, however, will be disappointed.  There is no movement in most of the categories.  EB-3 India remains unchanged at October 15, 2001.  EB-3 ROW (Rest of World) remains unchanged at May 1, 2005.  EB-3 China moves forward slightly by 22 days to October 22, 2002.  Finally, EB-3 Mexico moves forward significantly by 17 months to March 15, 2003.

March’s Visa Bulletin continues to improve the EB-2 category and make it a very attractive option for many applicants.  Although this month’s EB-2 progress of 45 days is significantly less than the 6-month forward movement observed in last month’s visa bulletin, it seems that USCIS is making efforts to improve the efficiency of the EB-2 category.

In light of these visa numbers, it becomes increasingly important to be able to file under the EB-2 category and avoid the very lengthy delays of the EB-3 category.  Please contact our office and we would be happy to evaluate your case and advise on the possibility of using the EB-2 category.

The American Competitiveness in the 21st Century Act (AC21) permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

We have been receiving numerous inquiries from individuals who wish to “port” their green card process to a “same or similar job” with different employer.  In addition to the question whether the new job is “same or similar”, the answer to which is beyond the scope of this post, the second most often question we receive is “When Should I Invoke AC21?”

Should I File AC21 Notification with USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing a Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something wrong with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

• You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
• Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
• You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

We Can Help You Analyze The Best Course of Action for AC21

We have helped many individuals change employers and invoke AC21 while preserving their green card process.  If done properly, such AC21 porting should not raise problems with USCIS and should allow you to take full advantage of your skills and education.  Please contact us and we would be happy to review your AC21 case and advise you on the best course of action.

The February 2009 Visa Bulletin is out.  It brings some good forward movement for some employment-based categories.  Unfortunately, EB-3 ROW and EB-3 India remain unchanged.

• EB-2 ROW remains current.  EB-2 India and EB-2 China both move forward by approximately 6 months.  EB-2 India is now at January 1, 2004 while EB-2 China is at January 1, 2005.
• EB-3 ROW remains unchanged at May 1, 2005.  EB-3 India remains unchanged at October 15, 2001.  EB-3 China moves forward by 4 months to October 1, 2002.

The forward movement of certain EB-2 India/China and EB-3 China categories makes many applicants eligible for adjustment of status filing.  Please contact our office if we can provide you with any assistance with your adjustment of status application or if you have any questions in connection with the February 2009 Visa Bulletin.

The Government Accountability Office (“GAO”) has published a report, “Actions Needed to Address Vulnerabilities in Process for Granting Permanent Residency” which reviews the process of security review of applications for legal permanent residency.  GAO’s recommends that USCIS establish a timetable for addressing the deficiencies noted in the report and establish procedures that would require some sort of verification of certain evidence submitted with petitions for legal permanent residency.

Among the most notable items of the report was the criticism and reserved hope that FBI will clear the backlog of pending security checks.  According to the GAO,  of the approximately 917,000 applications for LPR USCIS received from January 1, 2006, through May 31, 2007, 516 (0.05 percent) were referred to USCIS’s Office of Fraud Detection and National Security (FDNS) for national security concerns.

In addition, USCIS had encountered delays in obtaining the results of FBI name checks—FBI checks of its investigative files—for LPR applicants and others, and had issues regarding the usefulness of these results, but USCIS and the FBI have taken a number of actions that have improved these checks. The FBI dedicated more staff to process name checks, and USCIS provided additional funding and training to FBI staff. As a result, the number of pending name checks has decreased 90 percent, from 329,000 in May 2007 to 32,000 as of September 30, 2008. The FBI plans on being able to complete all name checks within 90 days of receipt by June 2009.

Finally, some concerns were raised about the ability of USCIS to detect benefit fraud, most notably lack of ability to  verify evidence submitted in support of LPR petitions.  GAO’s recommendation was to implement some requirements and procedures whereby certain evidence submitted by petitioners be properly verified.  USCIS has agreed with this recommendation and has indicated that it would work on creating a set of guidelines on supporting document verification.  It is unclear at this time what these guidelines would look like.