Labor Immigration Law

United States Labor Immigration Law News and Analysis

EB-2 Articles

EB-2 stands for “employment-based second category” and refers to a type of immigrant visa issued to professionals holding advanced degrees or their equivalent. One of the benefits of this category is relatively short visa number backlog for most countries. We have successfully processed a high number and variety of EB-2 immigrant petitions. If you would like to learn more about our immigration law practice or if you would like to request our services, please contact us.


May 2014 Visa Bulletin – EB-2 India and EB-3 ROW/China Remain Unchanged; FB-2A Remains Unchanged

The U.S. State Department has just released the May 2014 Visa Bulletin which is the eighth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is, well, the lack of movement in many of the major categories:  no movement in EB-2 India, no movement in EB-3 ROW/China and no movement in FB-2A.

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

Below is a summary of the May 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 remains unchanged (again!) at November 15, 2004 and is expected to remain at this level for some more time (but with possible forward movement later in the fiscal year).  EB-2 China moves forward by five (5) weeks to April 15, 2009.
  • EB-3 ROW, China and Mexico remain unchanged at October 1, 2012.  EB-3 Philippines moves forward by three and a half (3.5) months to November 1, 2007, while EB-3 India  moves forward by only two (2) weeks to October 1, 2003.
  • The “other worker” categories for ROW, China and Mexico remain unchanged at October 1, 2012.   Philippines moves forward by three and a half (3.5) months to November 1, 2007, while India  moves forward by only two (2) weeks to October 1, 2003

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

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

  • FB-1 ROW, China and India all move forward by two (2) weeks to March 8, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 15, 1993 and FB-1 Philippines moves forward by three (3) months to February 1, 2002.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remains unchanged for Mexico at April 15, 2012.

EB-2 India and EB-3 ROW/China Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW/China remain unchanged this month after several nice forward movements over the past few months.  This is an indication that USCIS is seeing an increased (and perhaps sufficient) number of filings (I-485/NVC) in this category so that they have enough cases to distribute the annual number of green cards.    This slowdown in EB-3 ROW/China is likely to suggest that there would not be much significant forward movement, and perhaps that there may be a possible retrogression in these categories.

Perhaps a tiny glimmer of light in this, otherwise gloomy Visa Bulletin, is the presence of (a small) forward movement in EB-3 India.

EB-3 China Continues to be Ahead of EB-2 China, but EB-3 is Slowing Down

Over the past several months our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (April 15, 2009).

What we saw in this month’s Visa Bulletin should give some pause to those who believe that they may be able to get a green card faster under EB-3 China than under EB-2 China.    In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We reiterate our caution to EB China applicants that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, and especially given the slowdown in EB-3 China, we believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

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 May 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 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 May 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.

No comments

April 2014 Visa Bulletin – EB-2 and EB-3 India Unchanged; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the April 2014 Visa Bulletin which is the seventh Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB-2 India, the continued forward  movement in EB-3 ROW, China and Mexico, and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

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

Below is a summary of the April 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 remains unchanged at November 15, 2004 and is expected to remain at this level for some more time (with possible forward movement later in the fiscal year).  EB-2 China moves forward by three (3) weeks to March 8, 2009 (indicating that the forward movement trend is slowing down and is likely to reverse soon).
  • EB-3 ROW, China and Mexico move forward by one (1) month to October 1, 2012.  EB-3 Philippines moves forward by six (6) weeks to June 15, 2007, while EB-3 India  remains unchanged at September 15, 2003.
  • The “other worker” moves forward by one (1) month to October 1, 2012 for ROW, China and Mexico.  It moves forward by six (6) weeks to June 15, 2007 for Philippines and remains unchanged at September 15, 2003 for India.

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

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

  • FB-1 ROW, China and India all move forward by three (3) weeks to February 22, 2007.   FB-1 Mexico moves forward by two (2) weeks to November 1, 1993 and FB-1 Philippines moves forward by two and a half (2.5) months to November 1, 2001.
  • FB-2A remains unchanged (again) for all ROW, China, India and Philippines at September 8, 2013.  It remain unchanged for Mexico at April 15, 2012
  • FB-2B ROW, China and India all move forward by seven (7) weeks to October 22, 2006.  FB-2B Mexico remains unchanged at May 1, 1993 while FB-2B Philippines also remains unchanged at June 8, 2003.

EB-2 and EB-3 India Remain Unchanged

Unfortunately, no news for EB-2 India means continued disappointment in the lack of movement in this category.   The reason for this lack of movement is the significant demand and pending cases at USCIS.   Last fall we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with the subsequent several Visa Bulletins, confirm our predictions.

The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until this summer).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 China Continues to be Ahead of EB-2 China

Over the past three months or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (October 1, 2012) is more advanced than the date for EB-2 China (March 8, 2009).

In some cases,  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.   Also not entirely unexpected is the retrogression in FB-2A for Mexican nationals — the Department of State has been cautioning that they see significant demand in this category and a retrogression would be forthcoming.

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 April 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 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 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.

No comments

February 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Again; No Movement in FB-2A

The U.S. State Department has just released the February 2014 Visa Bulletin which is the fifth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the slowing forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

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

Below is a summary of the February 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 remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to January 8, 2009.
  • EB-3 ROW, China and Mexico move forward by two (2) months to June 1, 2012.  EB-3 Philippines moves forward by two (2) months to April 15, 2007, while EB-3 India  remains unchanged (again) at September 1, 2003.
  • The “other worker” moves forward by two (2) months to June 1, 2012 for ROW, China and Mexico.  It moves forward by two (2) months to April 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

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

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

  • FB-1 ROW, China and India all move forward by three (3) weeks to January 1, 2007.   FB-1 Mexico moves forward by only one (1) week to October 1, 1993 and FB-1 Philippines moves forward by six (6) weeks to August 15, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to July 8, 2006.  FB-2B Mexico moves backwards by eleven (11) months to May 1, 1993 while FB-2B Philippines moves forward by three (3) weeks to May 22, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this February 2014 Visa Bulletin, confirm our predictions.    The last few Visa Bulletins showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Again, But Slowly

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories continue to move forward (again) but not as fast as they have been advancing over the past few months.   This month, the movement was only  by two months — compared to the forward movement of six months in the January 2014 Visa Bulletin.   This is another significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

EB-3 China More Advanced than EB-2 China

Over the past month or so, our office has handled many inquiries from Chinese nationals who are EB-2 applicants and who try to find out whether it makes sense to refile under EB-3 to take advantage of the unique situation where the cutoff date for EB-3 China (June 1, 2012) is more advanced than for EB-2 China (January 8, 2009).

Very often, an EB-2 China applicant seeks to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date and be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition — thereby retaining the priority date under the EB-3 category.    While it is possible to use a PERM which has already expired if it has been used in support of a previous I-140, a new EB-3 I-140 filing may not be filed under premium processing.  Filing an I-140 under regular processing may take around four to five months and it is entirely possible that by the time an EB-3 I-140 is approved, the EB-3 China cutoff dates may retrogress.

We also caution our clients and readers, especially the China employment-based applicants, that the historic average for an EB-3 China priority date to become current and for a green card under this category to be approved is still significantly higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application would take less time to approve.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

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 February 2014 Visa Bulletin (EB-3, specifically) 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 February 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.

No comments

January 2014 Visa Bulletin – EB India No Movement; EB-3 ROW, China and Mexico Advance Significantly Again; No Movement in FB-2A

The U.S. State Department has just released the January 2014 Visa Bulletin which is the fourth Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the expected lack of movement in EB India, the significant (six months) forward movement in EB-3 ROW, China and Mexico and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

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

Below is a summary of the January 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 remains unchanged at November 15, 2004 and is expected to remain at this level for some time.  EB-2 China moves forward by one (1) month to December 8, 2008.
  • EB-3 ROW, China and Mexico move forward by six (6) months to April 1, 2012.  EB-3 Philippines moves forward by five (5) weeks five to February 15, 2007, while EB-3 India  remains unchanged at September 1, 2003.
  • The “other worker” moves forward by six (6) months to April 1, 2012 for ROW, China and Mexico.  It moves forward by five (5) weeks to February 15, 2007 for Philippines and remains unchanged at September 1, 2003 for India.

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

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

  • FB-1 ROW, China and India all move forward by three (3) weeks to December 8, 2006.   FB-1 Mexico remains unchanged (again) at September 22, 1993 and FB-1 Philippines also remains unchanged (again) at July 1, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by one (1) month to June 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by five (5) weeks to May 1, 2003.

EB India Remains Unchanged

Earlier this fall, in October, we reported on the expected retrogression in the EB India categories due to high demand and the December 2013 Visa Bulletin, together with this January 2014 Visa Bulletin, confirm our predictions.    The December 2013 Visa Bulletin showed that our expectations were absolutely correct even though many of our EB India clients and readers were disappointed by this news.    Unfortunately, since EB-2 India remains severely retrogressed, we expect that there would be no forward movement for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression (in December 2013) and the lack of movement for the next several months in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to “stop” the rate of new filings by moving back the cutoff date until USCIS and DOS are able to approve the pending cases and “clear” the demand.

EB-3 ROW, China and Mexico Move Forward Significantly (Again) By Six Months

In contrast to EB India, we note that the EB-3 ROW, China and Mexico categories move forward (again) very significantly – by six months from October 1, 2011 to April 1, 2012.   This is another very significant movement and would help many EB-3 applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

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 January 2014 Visa Bulletin (EB-3, specifically) 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 January 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.

No comments

December 2013 Visa Bulletin – EB-2 India Major Retrogression; EB-3 ROW Moves Forward by a Year; No Movement for FB-2A

The U.S. State Department has just released the December 2013 Visa Bulletin which is the third Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the major (over 3.5 years) retrogression in EB-2 India, the significant (1 year) forward movement for EB-3 ROW and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.

Summary of the December 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the December 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India retrogresses, as we anticipated, by three years and seven months to November 15, 2004.  EB-2 China moves forward by one (1) month to November 8, 2008.
  • EB-3 ROW, China and Mexico move forward by one (1) year (not a typo!) to October 1, 2011.  EB-3 Philippines moves forward by three (3) weeks to January 8, 2007, while EB-3 India  retrogresses by three (3) weeks back to September 1, 2003.
  • The “other worker” moves forward by one (1) year to October 1, 2011 for ROW, China and Mexico.  It moves forward by three (3) weeks to January 7, 2007 for Philippines and retrogresses by three (3) weeks back to September 1, 2003 for India.

Summary of the December 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the December 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by three (3) weeks to November 15, 2006.   FB-1 Mexico remains unchanged at September 22, 1993 and FB-1 Philippines also remains unchanged at July 1, 2001.
  • FB-2A remains unchanged (again) for all nationalities.  All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
  • FB-2B ROW, China and India all move forward by five (5) weeks to May 1, 2006.  FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by three (3) weeks to March 22, 2003.

Not Good News for EB India:  Major Retrogression Hits EB-2 India; EB-3 India Also Moves Back

A couple of weeks ago, our office shared in detail our expectations that there would be a major retrogression in EB-2 India.      The December 2013 Visa Bulletin shows that our expectations were absolutely correct even though many of our EB India clients and readers would be disappointed by this news.     We expect that EB-2 India would remain severely retrogressed for at least several months (perhaps until Summer 2014).   The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 ROW Moves Forward Significantly By One Year

In contrast to EB India, we note that EB-3 ROW moves forward very significantly – by one year from October 2010 to October 1, 2011.   This is a very significant movement and would help many EB-3 ROW applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.

FB-2A Remains Unchanged

Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin.   We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.

Visa Bulletin Predictions – Employment-Based

The December 2013 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  No forward movement.

EB-3 Rest of World (ROW).    After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months.   Afterwards, the movement may stop or even retrogress.   There should be any forward movement beyond February.

EB-3 China.  Expected to track the worldwide (ROW) date.

EB-3 India.  No forward movement expected.

EB-3 Philippines.  Expected to keep moving forward by three to six weeks per month.

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 December 2013 Visa Bulletin (EB-3 ROW, specifically) 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 December 2013 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.

No comments

Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India (October 23, 2013)

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.   Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.

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 the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 India will retrogress significantly in the December 2013 Visa Bulletin — going back to late 2004 or early 2005.   EB-3 India will remain unchanged or retrogress slightly over the near term.    EB-3 ROW will move forward significantly (by a year) in the near term (few months), with possible slowdown towards the middle of the fiscal year.   

General Visa Number Trends

Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children).   As a result, and in recognition of the fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed.

He also explained that the number of EB-3 to EB-2 porting cases is very significant and because the mechanics of the EB-3 to EB-2 porting system does not allow advance notification to the Department of State’s Visa Office.   This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case.   As an example, Mr. Oppenheim cited that between October 1 and October 22nd his office noted that there were approximately 800 Indian nationals who ported from EB-3 to EB-3.   Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.

Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to late 2004 or early 2005) in the upcoming Visa Bulletin and would be held back for a significant period of time, very likely until the summer of 2014.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   He cited EB-5 China category where the demand has been growing steadily (approximately 15% over the year before) and that a cutoff date for EB-5 China is possible later this fiscal year (possibly around June 2014).   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India and China forward movement.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  This is the major headline from our meeting with Mr. Oppenheim –  EB-2 India is expected to retrogress significantly – by several years back to late 2005 or early 2005 as early as the next Visa Bulletin.     It is expected that EB-2 India will remain at that level (late 2004 or early 2005) until the summer of 2014.    The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 Rest of World (ROW).  This category is expected to move forward significantly (up to one year) over the next one or two months to stimulate “demand” for the next several months.

EB-3 China/Philippines.  Each of these two categories is expected to keep moving forward by 2 weeks per month.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and there is no forward movement expected in the next (December 2013) Visa Bulletin.     In addition, Mr. Oppenheim indicated that a retrogression is very possible in the near future.   This would be caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available.   However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is on an upward trajectory and he indicated that the most recent fiscal year noted a 15% increase in EB-5 China cases.   This makes it likely that there would be a cutoff date introduced towards the summer for EB-5 China (only).

Visa Bulletin Predictions – Family-Based

Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.

FB-1 ROW.   This category is expected to advance by 3-5 weeks per month.

FB-2A.   This category is expected to be held at its current level for the foreseeable future.  Mexico is likely to retrogress.

FB-2B.  This category is expected to advance by 3-5 weeks per month.

FB-3.  This category is expected to advance by 3-5 weeks per month.

FB-4.  This category is expected to advance by 2-3 weeks per month.

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early  priority dates.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically.     Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.    Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   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.

No comments

September 2013 Visa Bulletin – EB-2 India and EB-3 Advance Significantly; FB-2A Remains Current But For Not Much Longer

The U.S. State Department has just released the September 2013 Visa Bulletin which is the last Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant forward movement in EB-2 India, the significant forward movement in EB-3 and the fact that FB-2A remains current for every country but with an expected cutoff date next month.

Summary of the September 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward (again) by six (6) months to June 15, 2008.  EB-2 China remains unchanged at August 8, 2008.
  • EB-3 ROW, China and Mexico move forward significantly by eighteen (18) months to July 1, 2010.  EB-3 Philippines moves forward by five (5) weeks to December 1, 2006, while EB-3 India  moves forward significantly by nine (9) months to September 22, 2003.
  • The “other worker” category moves forward significantly by eighteen (18) months to July 1, 2010 for ROW and Mexico to July 1, 2010.  It moves forward by five (5) weeks to December 1, 2006 for Philippines and moves forward by two and a half (2.5) months to June 15, 2004 for China.  There is forward movement by nine (9) months for India to September 22, 2003.

Summary of the September 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward, although slowly.  FB-1 ROW, China and India all move forward by two (2) weeks to September 15, 2006.   FB-1 Mexico moves forward by only one (1) week to September 8, 1993 and FB-1 Philippines moves forward by four (4) months to May 8, 2001.
  • FB-2A continues to remain current for everyone.
  • FB-2B ROW, China and India all move forward by two and a half  (2.5) months to February 15, 2006.  FB-2B Mexico moves forward by three (3) weeks to February 22, 1994 while FB-2B Philippines moves forward by one (1) month to January 22, 2003.

EB-2 India Moves Forward Again

Until a month ago, EB-2 India had been stuck at September 1, 2004 (since the October 2012 Visa Bulletin) – this is when EB-2 India retrogressed significantly and until today there had been no movement in this category.  After the August 2013 Visa Bulletin showed significant forward movement for EB-2 India, we welcome the continuing forward movement in this category in the September 2013 Visa Bulletin.   Although this month’s movement of about six month may not be significant enough for many, it is still a very notable forward movement which would allow many EB-2 India applicants to either complete their I-485 processing or file an I-485 for themselves or their dependents.

The Department of State has indicated that this significant advancement has been done in order to utilize all of the available visa numbers for the fiscal year (which ends on September 30th).   The Department of State and USCIS are expecting (and our office already has seen) increased activity in this category — National Visa Center (NVC) case processing and I-485 adjustment of status activity at USCIS.    It should be noted that with the increased activity over the next few months in EB-2 India, slowdown and even retrogression are possible.

EB-3 Moves Forward Significantly

In addition to EB-2 India, the September 2013 Visa Bulletin brings good news to folks under the EB-3 category.  The most notable movement is for ROW, China and Mexico where the movement is by eighteen months.   EB-3 India also moves nicely forward – by 9 months.   EB-3 Philippines may be disappointed by the relatively slow movement of about five weeks.  This significant forward movement is caused in an effort to make sure that there are no unused visa numbers for the fiscal year (to end on September 30th).

FB-2A Remains Current – Spouses and Children of Green Card Holders – Cutoff Date Upcoming

Another very significant development brought by the August 2013 Visa Bulletin and continuing (as expected) for the September 2013 Visa Bulletin is making FB-2A current for all countries.   The Department of State has indicated that this category will continue to be “Current” for September and is expected to remain so for the next few months.   The reason is that the Department of State wants to stimulate an increased level of “demand” (filings) in this category.     The Department of State reports that even though there are large amounts of registered F2A demand, currently there are not enough applicants (NVC fees paid and I-485 adjustment of status cases filed) who are actively pursuing final action on their case to fully utilize all of the available numbers.

It is important to note that the Department of State has indicated that a cutoff date will be imposed for the October 2013 Visa Bulletin.  As a result, it is important for those who are eligible to file under the FB-2A category to do so as soon as possible.

No Movement in EB-2 China

Those of our clients who are in the EB-2 China category will find it disappointing that there is no movement in the EB-2 China category (again!).     Hopefully, with the new fiscal year beginning on October 1st, the next Visa Bulletin would bring better news for EB-2 China.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India, EB-3 and FB-2A all countries.   Those applicants whose priority dates are current as of the September 2013 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 September 2013 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.

No comments

August 2013 Visa Bulletin – EB-2 India Moves Forward Significantly; FB-2A is Current

The U.S. State Department has just released the August 2013 Visa Bulletin which is the eleventh Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant forward movement in EB-2 India, FB-2A being current for every country and the lack of movement for EB-3.

Summary of the August 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward (finally!) by three years and four months to January 1, 2008.  EB-2 China remains unchanged at August 8, 2008.
  • EB-3 ROW, China and Mexico remain unchanged at January 1, 2009.  EB-3 Philippines moves forward by three (3) weeks to October 22, 2006, while EB-3 India  remains unchanged at January 22, 2003.
  • The “other worker” category remains unchanged for ROW and Mexico at January 1, 2009.  It moves forward by three (3) weeks to October 22, 2006 for Philippines and remains unchanged at March 22, 2004 for China and it also remains unchanged at January 22, 2003 for India.

Summary of the August 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the August 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by three (3) months to September 1, 2006.   FB-1 Mexico moves forward by only one (1) week to September 1, 1993 and FB-1 Philippines moves forward by six (6) months to January 1, 2001.
  • FB-2A is current for everyone.
  • FB-2B ROW, China and India all move forward by one (1) month to December 1, 2005.  FB-2B Mexico moves forward by three  (4) months to February 1, 1994 while FB-2B Philippines remains unchanged at December 22, 2002.

EB-2 India Finally Moves Forward – Significantly

EB-2 India had been stuck at September 1, 2004 since the October 2012 Visa Bulletin – this is when EB-2 India retrogressed significantly and until today there had been no movement in this category.  We welcome the significant forward movement of three years and four months in this category — to January 1, 2008.   We had been expecting forward (see our predictions from June 13) movement in India this month and our office has been preparing for the increased activity which will inevitably result.
The Department of State has indicated that this significant advancement has been done in order to utilize all of the available visa numbers for the fiscal year (which ends on September 30th).   The Department of State and USCIS are expecting (and our office already has seen) increased activity in this category — National Visa Center (NVC) case processing and I-485 adjustment of status activity at USCIS.    It should be noted that with the increased activity over the next few months in EB-2 India, slowdown and even retrogression are possible.
FB-2A is Current – Spouses and Children of Green Card Holders

Another very significant development brought by the August 2013 Visa Bulletin is making FB-2A current for all countries.   The Department of State has indicated that this category has become “Current” for August, and is expected to remain so for the next several months.   The reason is that the Department of State wants to stimulate an increased level of “demand” (filings) in this category.     The Department of State reports that even though there are large amounts of registered F2A demand, currently there are not enough applicants (NVC fees paid and I-485 adjustment of status cases filed) who are actively pursuing final action on their case to fully utilize all of the available numbers.

No Movement in EB-3 and EB-2 China

Many of our clients and readers who are not EB-2 India or FB-2A would be disappointed by the lack of movement in the other employment-based categories.   EB-2 China and EB-3 remain unchanged.   The Department of State had indicated (and we reported) that EB-3 ROW and China would not move forward for the remainder of the fiscal year; but we are surprised to see that EB-2 China and EB-3 India also did not move this month.    It is possible that the Department of State would make final adjustments in these categories for the last Visa Bulletin next month; although we do not expect major (if any) developments for EB-3.
Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India and FB-2A all countries.   Those applicants whose priority dates are current as of the August 2013 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 August 2013 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.

No comments

Texas Service Center Retracts Derivative Applicants’ I-485 RFEs

Many of our clients and readers are already aware of the June 13, 2013 “RFE blizzard” where U.S. Citizenship and Immigration Service (“USCIS”) issued thousands of identical  requests for evidence (“RFE”) on pending employment-based primary and derivative Form I-485, Application to Adjust Status.  Many would remember that in our article from two weeks ago, we discussed how derivative I-485 applicants should not have been issued such an RFE.  Now, in another set of thousands of notices, most dated June 26, USCIS is informing derivative I-485 applicants that their I-485 RFE is essentially retracted and they no longer need to respond to it.   Please see a redacted sample of the RFE retraction notice.

Derivative Applicants Receiving RFE Retraction Letter – I-485 RFE Response Optional; Primary Applicants Must Respond to June 13 RFE

It is important to underscore what this notice means and what it does not mean.   Derivative applicants  (spouses and children) who received the June 13, 2013 I-485 RFE and who now received this RFE retraction notice do not have to respond to the June 13 RFE any longer.   USCIS is specific in the RFE retraction notice in saying that a derivative I-485 application will not be denied for failure to respond to the June 13 RFE.

However, and very importantly, if a derivative I-485 applicants has an RFE which is different than the June 13 RFE (see sample), USCIS will expect to receive an RFE response or they can deny the I-485 derivative application.    Also, primary applicants who received the June 13 RFE are expected to respond to it on time or their application (including the derivative I-485) application may be denied for failure of the primary applicant to respond to the June 13 RFE.

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

As USCIS is preparing to adjudicate visa-retrogressed I-485 applications, we expect busy July and August months, especially if the August 2013 Visa Bulletin shows forward movement in many of the heavily-retrogressed categories.   For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations), 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.


No comments

USCIS Issues Numerous 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 and derivative Form I-485, Application to Adjust Status.   Most of the RFEs were issued and dated June 13th or June 14th and hardcopies are starting to be delivered to individual applicants and to their attorneys.     Our office has also started receiving such documents and we have been receiving numerous inquiries with respect to this massive RFE event.

Identical I-485 RFEs

It appears that the majority 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 two 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 and (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.   Please see a redacted sample of the RFE template issued.

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).

Derivative Dependents Issued Identical RFEs

What is somewhat troubling is that USCIS has issued RFEs with identical language to derivative dependents.    Specifically, dependents’ RFEs include the phrase “You are an Employment-Based Principal Applicant” which is plainly incorrect for derivative beneficiaries.

Also, the RFE for derivatives asks for evidence in the same two areas as primary applicants without any consideration that such documents or information may not be applicable for derivative family member applicants.   For example, a derivative applicant’s RFE asks for proof of continued employment authorization since the filing of I-485.   Many derivative applicants, especially children, do not seek and obtain EAD work permits as part of their I-485 application.   In fact,  whether or not a derivative applicant is employed (unless on status permitting employment such as H-1B or L-1), is not a factor in the I-485 adjudication.

The RFE for derivative applicants also asks for a letter from “your petitioning (Form I-140) employer.”    Derivative I-485 applicants, by definition, do not have a petitioning I-140 sponsor employer.    It is unclear what is USCIS’s motive — whether they seek such a letter from the primary applicant’s sponsoring employer, or simply that they reused the template without regard to a specific case’s parameters.

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), 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.

No comments

Next Page »