Labor Immigration Law

United States Labor Immigration Law News and Analysis

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

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

Database Glitch Causing Increasing U.S. Visa Processing Backlogs

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

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

Are You Experiencing Delays?  Share Your Experience With Us

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

Conclusion

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

We will be providing updates on this outage as we have more information.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.  If our office can be of any help, please feel free to contact us.

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USCIS Clarifications on H-1B Nurse Requirements Open Door for More Approvals

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

Background of H-1B for Nurses

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

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

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

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

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

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

Conclusion

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

We are happy to consult employers who are considering filing for H-1B petitions for nurses.  Our office focuses its practice on employment-based immigration matters and we have handled a variety of immigration cases for hospitals, medical facilities and similar health-care related employers.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.  If our office can be of any help, please feel free to contact us.

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Current PERM Processing Times (July 8, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of July 8, 2014.

Current PERM Processing Times

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

  • Regular processing: February 2014.  DOL is processing PERM applications with priority dates of July 2014.  Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    There is another (welcome) improvement in the processing time for PERM cases of about one month, compared to the June 2014 report.    We are hopeful that the trend of improving processing times would continue.
  • Audited applications: February 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of February 2013.  There is change in the reported date of only one month, which means that this processing time has remain unchanged compared to the June 2014 report.   Accordingly, audited PERM applications are processed approximately 17-18 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): July 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in July 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

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

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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

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

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

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

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

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

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

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

EB-2 India Another Significant Forward Movement

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

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

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

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the August 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the August 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Current PERM Processing Times (June 5, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of June 5, 2014.

Current PERM Processing Times

Most notable is the decrease in the processing time for PERM applications – from seven months down to six months for regular PERM cases.     The processing time of PERM applications in audit increases by a month compared to our prior report from a montha go.   The processing times, as reported by DOL, are as follows:

  • Regular processing: December 2013.  DOL is processing PERM applications with priority dates of December 2013.  Accordingly, regular PERM processing times should be around six months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    There is a (welcome) improvement in the processing time for PERM cases of about one month, compared to the May 2014 report.    We are hopeful that the trend would continue.
  • Audited applications: January 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of January 2013.  There is no change in the reported date, which means that this processing time has increased slightly, by one month, compared to the May 2014 report.   Accordingly, audited PERM applications are processed approximately 17-18 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): June 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in June 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

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

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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July 2014 Visa Bulletin – EB-2 India Moves Forward by Four Years; FB-2A Remains Unchanged

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

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

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

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India advances significantly by almost four (4) years to September 1, 2008.  EB-2 China moves forward by five (5) weeks to July 1, 2009.
  • EB-3 ROW, China and Mexico remain unchanged.  EB-3 ROW and Mexico are at April 1, 2011 while EB-3 China remains unchanged at October 1, 2006.   EB-3 Philippines advances by one (1) year to January 1, 2009, while EB-3 India  moves forward by only two (2) weeks to November 1, 2003.
  • The “other worker” categories for ROW, China and Mexico also remain unchanged.  ROW and Mexico are at April 1, 2011 while China remains unchanged at January 1, 2003.    Philippines advances by one (1) year to January 1, 2009, while India  moves forward by only two (2) weeks to November 1, 2003.

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

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

  • FB-1 ROW, China and India all move forward by one (1) week to April 1, 2007.   FB-1 Mexico moves forward by six (6) weeks to February 1, 1994 and FB-1 Philippines moves forward by six (6) months to January 1, 2003.
  • FB-2A remains unchanged for all (after a significant retrogression last month) – it remains at May 1, 2012 for ROW, China, India and Philippines.  It remains at March 15, 2011 for Mexico.

EB-2 India Significant Forward Movement

Finally, this month’s Visa Bulletin brings some welcome (and somewhat expected) news for EB-2 India applicants.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office has expected some movement to occur towards the end of the fiscal year.     The four-year forward movement in EB-2 India is done to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We expect approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

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

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the July 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the July 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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USCIS Revised Policy Regarding I-693 Medical Exam Validity – Restricts Validity to One Year

USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application.   Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS.   This is in addition to the requirement that the I-485 applicant must submit the I-693  medical exam within one year of the actual medical exam date.

Background and Reasons for the Change of Policy

Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature.   Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam.   As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.

After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy.   While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).

Policy Change Related to Increased Number of I-485 Requests for Evidence

This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months.     As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS.     It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.

Conclusion

It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period.    This policy change helps explain the wave of recent (and upcoming) RFEs.   We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items.    This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Visa Stamp in Canada Alert – TCN Processing Limited Over the Summer

The Department of State (DOS) has just confirmed that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts (U.S. Consulates) in Canada are extremely limited in their ability to accept TCN cases during the peak demand period of June, July, and August.

TCN refers to “third-country nationals” or non-Canadians who seek to apply for a U.S. visa stamp at a U.S. Consulate in Canada.   Normally, U.S. Consulates prefer for a national of a particular country to appear for a visa stamp at the U.S. Consulate in their own country or at the Consulate serving their country.   When a foreign national appears for a visa stamp at a U.S. Consulate in a third country, where such practice is accepted, the applicant is referred to as a “third-country national.”

According to the Department of State, U.S. Consulates in Canada encourage such TCN applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Canadian posts offer increased appointment availability for TCNs during non-peak processing times, such as October and November, and January through May.   Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.

While it is important to stress that visa interviews and appointments by third-country nationals already scheduled at a U.S. Consulate in Canada will be honored, our office would like to stress proper planning for any international travels for those foreign nationals who are in the U.S. but who would need to obtain a U.S. visa stamp before their return to the U.S.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Current PERM Processing Times (May 5, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of May 5, 2014.

Current PERM Processing Times

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

  • Regular processing: October 2013.  DOL is processing PERM applications with priority dates of October 2013.  Accordingly, regular PERM processing times should be around seven months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.  Unfortunately, there is no significant change in the regular processing times compared to the last (February 2014) report.
  • Audited applications: January 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of January 2013.  This processing time has increased slightly compared to the February 2014 report.   Accordingly, audited PERM applications are processed approximately 16-17 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): May 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in May 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The May 2014 PERM processing times report shows that the PERM processing times remain largely unchanged compared to our report from a few months ago.   Over the past several months, we have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to control and bring down the PERM processing times especially since they were as short as two months not long ago.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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USCIS Issues a Flood of RFEs on Pending I-485 Applications

Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based primary Form I-485, Application to Adjust Status, cases.    Our office has been receiving such RFEs and we have been hearing from readers and clients who have also been affected by this large-scale RFE event.    Unlike the similar mass-RFE event from June 2013, this time the RFEs seem to be more accurately drafted, do not include dependents and include request for renewed Form I-693 medical exam documents.

Similar or Identical I-485 RFEs

It appears that the majority (if not all) of these RFEs were issued by the Texas Service Center and most appear to be for EB-2 India applicants.    In terms of substance, the RFEs appear to be almost identical and seek information and clarification on a few points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE; (2) a current (and original) employment verification letter from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer; and (3) request for updated I-693 medical exam form.

Maintaining Employment Authorization

The RFE requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

Original Employment Verification Letter

The RFE also asks for an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   The EVL should be in original, on employer letterhead, and should confirm that the job offer described in the I-140 petition exists (for sponsoring employers).   In situations where the I-485 applicant has ported their I-485 to a new employer (or to the same employer but on a different position) pursuant to AC21, the RFE seeks an EVL from the new employer confirming that the new position is same or similar to the position noted in the I-140 petition.

As mentioned above, the EVL should be in original, currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Updated I-693 Medical Exams

Finally, the RFEs are seeking an updated set of I-693 medical exam forms, completed by a designated Civil Surgeon, and in a sealed envelope.   The reason the medical exams are included in this set of RFEs is that USCIS not automatically renew the validity of the I-693 medical exams this year and, as a result, a number (or all) relevant I-693 medical exam forms expired because they were valid for only one year.

As a background, USCIS had a policy of automatically renewing the validity of timely-filed I-693 medical exams.  However, as of this year, USCIS did not renew this policy, resulting in a number of I-693 medical exams expiring.   As a result, USCIS is seeking a new Form I-693 as part of this RFE wave.

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

There is much speculation as to what is the USCIS intent in generating so many RFEs in such a short period of time without, in many cases, careful consideration of the facts of a specific case.    We will not speculate since and we do not yet have an official position from USCIS.    For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations for forward movement in EB-2 India in the next few months), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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