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.

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 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.

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.

• 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.

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.

• 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.

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.

What may be of the greatest interest are the current average processing time compared to the FY 2008 and FY 2009 goals for the following categories :

• I-140, Immigrant Petition for Worker – current goal:  6 months, FY 2009 goal: 4 months.  Actual average time: 11.8 months.
• I-485, Adjustment of Status- current goal: 6 months, FY 2009 goal: 4 months.  Actual average time: 13.6 months.
• I-131, Reentry Permit – current goal: 3 months, FY 2009 goal: 2.5 months.  Actual average time: 3.9 months.

The USCIS has acknowledged that the goals were set before the new fee rule came into effect during the summer of 2007 and which resulted significant increase in the filings.  However, USCIS has declined to realistically adjust (decrease) the goals for FY 2008 and 2009.  As a result, although we expect that the processing times will improve, the gap between the goals for FY 2009 and the actual processing times will remain significant.

In a July 14, 2008, Memorandum, Donald Neufeld seeks to explain the applicability of these exemptions and provide details and clarifications on the applicability of the exemptions and the adjudication procedures.

What is the Exemption.   The bars to admission which are inapplicable are as follows: for a period of 180 days since the petitioner’s last lawful admission in the U.S. your status, (1) failed to maintain your status, (2) engaged in unauthorized employment, and (3) otherwise violated the terms of his/her status or admission.

Who is Exempt.  The exemptions are applicable to employment-based adjustment of status applications in EB-1, EB-2, EB-3, or EB-4 categories.  The alien must be present in the U.S. pursuant to a lawful admission.  The exemptions are available to derivative petitioners as well.

Analysis.  Although this is not a new rule, the July 14, 2008, Neufield Memo seeks to provide clear guidance and explanation on the applicability of the 180-day exemptions.  It is important to understand that the three exemptions are only for employment-based adjustment of status petitions, and not for family-based.  Also, it is important to understand that the 180-day period is cumulative and includes all days, weekend and holidays.  Finally, the 180-day period counts the dates since the last lawful admission – leaving the U.S. and entering legally “clears” the count.

• Rotavirus;
• Hepatitis A;
• Meningococcal;
• Human papillomavirus; and
• Zoster.

Although the requirements for these vaccines went into effect on July 1, 2008, the Centers for Disease Control and Prevention (CDC) approved a 30-day grace period for all exams conducted prior to August 1.  In connection with the revised list of vaccinations, the revised Form I-693, Report of Medical Examination and Vaccination Record, dated as of June 5, 2008, or later must be used.

Before we go into the technicalities – there is one major rule which warrants repeating – be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

Now, the American Competitiveness in the Twenty-first Century Act (AC21) was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a letter with USCIS.  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent unon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

The new form can be obtained from USCIS’ website.

For applicants for adjustment of status who are in the process of preparing their medical forms should ensure that their civil surgeon has the most recent version of the form, or if the form is already completed, it should be filed before July 14, 2008.

The premium processing procedure will guarantee 15 calendar-day response by USCIS for a non-refundable fee of $1,000.  To take advantage of the I-140 premium processing, the I-140 petition must be filed on behalf of aliens:

• who are currently in H-1B nonimmigrant visa status;
• whose sixth year will end within 60 days;
• who are only eligible for for a further extension of H-1B nonimmigrant status under section 104(c) of AC21 (permitting 3-year H-1B extensions upon approved I-140); and
• who are ineligible to extend their H-1B status under section 106(a) of AC21 (permitting 1-year H-1B extensions if I-140 or the underlying labor certification is pending for at least 365 days).

Even though the premium procedure is limited in certain cases, it brings welcome relief to a number of H-1B holders who are nearing the limit on their H-1B status.  Please contact us for more information on how you can take advantage of this new rule.

DHS Secretary Chertoff, in remarks at the “State of Immigration” address, noted that beginning June 2008, DHS will start issuing 2-year EADs for applicants whose adjustment of status petitions if such petitions are expected to be pending for more than one year. His precise remarks are:

“Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

..

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It’s going to cut the paperwork there.“

Full text.

The speech does not address details such as the exact date of when this change would take effect and whether advance parole (AP) extensions would also be extended in 2-year terms. We will continue monitoring developments in connection with Secy. Chertoff’s statement and update our clients and readers as we know more. Readers can subscribe to our newsletter to obtain email notification of recent developments.

Update: USCIS has released more details on the new rule.

The proposed rule is scheduled for publication in June with a 60-day comment period.

Reasons
We do not have reliable information at this point as to the rationale of this proposed rule change. It seems that USCIS may be trying to eliminate the backlog of I-140/I-485 applications which were filed in the summer of 2007 when there was a substantial forward visa movement. It has been suggested that USCIS may be trying to control the volume of filings should a dramatic forward movement, similar to the summer of 2007, occur in the future.

About the I-140/I-485 Concurrent Filing Procedure
The concurrent filing procedure was implemented in 2002 and it has become a very useful for aliens who qualify. The concurrent filing procedure permits an alien who has an I-140 filed to file a I-485 adjustment of status application and, as a result, take advantage of a number of benefits associated with pending I-485. A properly filed and pending I-485 opens eligibility for employment authorization documents (EAD) and advanced parole (AP) for the beneficiary and his or her immediate family. Also, having I-485 pending for certain period of time may open other benefits, such as job portability to similar job opportunities.

Consequences
As a result of the new rule, foreign employees would be impacted negatively in several important ways. First, they would be restricted in switching employers. Additionally, families of foreign employees would not be entitled to work authorization until later in the process, thus putting financial strain on some of the immigrant families. Finally, international travel may be impacted as fewer families would be entitled to AP earlier in the process.

It should be noted that it is not expected that the proposed rule will impact currently filed concurrent I-140/I-485. We will continue to monitor the situation and update our clients as we learn more.

Unfortunately, there was no movement in the EB-3 category for any country.  There were more bad news for EB-3 applicants.  According to the June 2008 Visa Bulletin, the annual cap for EB-3 cases is expected to be reached in June; as a result, the EB-3 category is likely to experience retrogressions or visa unavailability beginning in July (stay tuned for the July 2008 Visa Bulletin in mid-June).  It is expected that in October, upon the start of the new fiscal year, the cut-off dates would recover to their present date.

Read the full June 2008 Visa Bulletin.

Michael Yates, the USCIS Associate Director for Domestic Operations testified in front of the Committee and although scheduling conflict did not permit our firm to be present at the hearing, we have reviewed the text of Yates’ prepared statement.

Unfortunately for us and our clients, Yates’ prepared statement does not seem to provide much forward-looking insight into the operations of USCIS.  The statement goes to great lengths to explain the visa categories, the processes for obtaining legal permanent residency and the historic numbers, but does little to show the millions of foreigners with backlogged pending applications how and when will the backlog be cleared and the process streamlined.

For completion, we are including the prepared statement of Stephen A. Edson, Deputy Assistant Secretary of State for Visa Servivce, U.S. Department of State.  Mr. Edson’s statement explains how the State Department allocates visa numbers and praises the State Department’s work in allocating the visa numbers so that close to 100% of the available visas in each Fiscal Year are used. 

Form I-693 is used by applicants filing for adjustment of status to become permanent residents.  Civil surgeons performing medical examination in connection with adjustment of status must use the new form for all examinations completed in the future.  According to USCIS, not all civil surgeons have provided accurate email or contact information and it is possible that some civil surgeons are not aware of the new form.  Therefore, we recommend that applicants for adjustment of status inform their civil surgeons of the new form and present at least one copy of the new form to them.

See the full April 2008 Visa Bulletin.

EB3 – Employment-based, Third Preference

The best news is for applicants under the EB3 category.  The cutoff date for EB3 “worldwide” category and the Philippines moved forward significantly, to January 1, 2005, an advance of more than two years.  China moved forward by more than a year, to December 1, 2002.  India moved forward by few months, to August 1, 2001.

EB2 – Employment-based, Second Preference

While EB2 India is still unavailable, EB2 China has moved slightly forward to December 1, 2003.

Unfortunately, the USCIS does not consider the future income which will start coming from the non-working spouse as soon as the spouse receives a derivative employment authorization document (EAD) and starts working.  USCIS states clearly that if the sponsor’s income is not sufficient to meet the requirement for the household size, then the applicant immigrant will not be eligible for immigrant visa or adjustment of status.

Thus the options for meeting the income requirement are as follows:

•  Include income from relatives or dependents living in the sponsor’s household or dependents listed in the sponsor’s most recent Federal tax return.  Such relatives and dependents must sign form I-864A.
• Include income from the applicant immigrant, if that income will continue coming from the same source.  In the case of H-1B/H-4 couple, this would not be applicable because the H-4 spouse is not eligible to work.
• Include the value of assets of the sponsor or any household member who is willing to sign I-864A Form.
• Include a joint sponsor whose income and/or assets equal at least125 percent of the Federal Poverty Guidelines.

The goal of the I-864 Form is not to eliminate low-income immigrants but to ensure that such immigrants, once admitted to the U.S., do not become a burden to the social services system.  The options outlined above provide, in our opinion, sufficient opportunities for applicants to satisfy the income requirement.  Finally, the USCIS scrutinizes I-864 Forms for insufficient income and any false information may be cause for denial of benefits.

As the chart illustrates, the number of visa applications following the July 2007 visa fees increased dramatically. This is ironic since the goal behind this July 2007 visa fee increase was to eliminate the processing backlog that plagued many visa applications. According to Gonzales, however, the USCIS did not anticipate the extremely high volume of applications, mainly resulting from the forward movement in many visa priority dates in the July 2007 Visa Bulletin. As a result of this forward movement in the employment-based visa numbers, the USCIS received in the summer months of 2007 approximately 300,000 adjustment of status applications, along with work authorization and travel (advance parole) documents, making a total of approximately 800,000 applications. From June through August 2007 the USCIS received over 3 million applications and petitions of all types (compared with 1.8 million for the same period in 2006).

In Fiscal Year 2007, the agency received almost 1.4 million citizenship applications which is almost twice the number received during the previous fiscal year. Gonzalez stated that his agency has responded to this surge in applications by increasing work hours, adding shifts and hiring contract workers to help meet the demand. However, the backlog remains and is not likely to decrease in the near future. The unfortunate news from Gonzalez is that, “[t]his surge will have a serious impact on application processing times for the next couple of years. As a result, based on our response plan, most customers will wait much longer to have their applications completed.”

The average processing times of citizenship applications are expected to increase from seven to 18 months and adjustment of status applications for family-based immigration applications would increase from six to 12 months. Although the increase in waiting times are expected to be temporary, this is expected to create a number of difficulties and challenges to foreign nationals. Gonzalez said that he expects a return to current processing times (which according to many are too long anyway) is expected in the second half of Fiscal Year 2010). He also said that his agency has taken tremendous efforts to be able to process employment authorization applications within the statutory period of 90 days in light of the large applications backlog.

To address the concerns of all petitioners, the USCIS has released an update of the timing of the receipts and the data entry into the USCIS tracking system.

Dates
The USCIS has said that it will honor the actual date that an application was received by their mailroom. We recommend to all of our clients that all petitions be filed via courier such as FedEx which allows us to determine the actual receipt date. This provides the foreign national with some sense of what their receipt date will be once the USCIS processes the application and issues a Form I-797, Notice of Action. In addition, USCIS has said that it may take up to 12 weeks for adjustment of status applications and 15 weeks for naturalization applications to be entered into the USCIS system and I-797 issued.

California Service Center
- I-130 Forms            8/30/2007 (all subsequent forwarded to Chicago for data entry)
- All Other Forms      Current

Nebraska Service Center
- All Forms                Current

Texas Service Center
- All Forms                Current

Vermont Service Center
- I-130                          7/29/2007 (all subsequent sent to Chicago for data entry)
- All Other Forms        Current

Chicago Lockbox (as of 1/14/08)
- I-130 Forms             10/25/2007
- All Other Forms        Current

Los Angeles Lockbox
- All Forms                    Current