Summary of the August 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the August 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over three (3) months to March 1, 2006, EB-2 India moves forward by five (5) months from October 1, 2005 to March 1, 2006.
• EB-3 ROW moves forward by nine and a half months (9.5) months to June 1, 2004, EB-3 China  moves forward by slightly over one (1) month to September 22, 2003, while EB-3 India moves forward by slightly over one (1) month to January 1, 2002.  EB-3 Mexico remains unavailable.
• The “other worker” category moves forward by a few months, to May 15, 2002 for ROW and China and to January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department has determined only 8,100 of the total available EB-2 preference numbers would be used in that quarter.   In this case, the unused 3,500 numbers could then be made available to China-mainland born and India regardless of their per-country limits.

Forward Movement Is Temporary

Note that the substantial forward movement  does not indicate a trend; instead, the last two visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

Summary of the July 2010 Visa Bulletin

Below is a summary of the July 2010 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China remains unchanged at November 22, 2005, and, most notably, EB-2 India moves forward by ten (10) months from February 1, 2005 to October 1, 2005.
• EB-3 ROW moves forward by almost two (2) months to August 15, 2003, EB-3 China also moves forward by almost two (2) months to August 15, 2003, while EB-3 India moves forward by one (1) month to November 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is  unavailable.

Finally Movement in EB-2 India

Previously we wrote about the lack of movement in the EB-2 India category for the past four months.  Finally, there is a substantial forward movement in EB-2 India which should benefit at least some of our clients and readers.  Please do not hesitate us if you have any questions or if we can help you prepare and file your I-485 adjustment application.

The State Department added another country to the list of oversubscribed countries – Dominican Republic.  This means that for all family and employment-based categories, there is now a category for the Dominican Republic, in addition to China (mainland-born), India, Mexico and the Philippines.

Summary of the June 2010 Visa Bulletin

Below is a summary of the June 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (2) months to November 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the third month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost two (2) months to June 22, 2003, EB-3 China moves forward also by two (2) months to June 22,  2003, while EB-3 India moves forward by three (3) weeks to October 22, 2001.  EB-3 Mexico remains unavailable.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Why Does EB-2 India Not Move?

Our readers and clients have asked us what is the cause of the lack of movement in the EB-2 India category.  Over the past few years, with the severe retrogression of EB-3 India, many Indian nationals have been able to start and obtain an approval of a new I-140 under the EB-2 category.  Our office has handled a number of such EB-3 to EB-2 “upgrade” cases.  As a result, many of the EB-3 India applicants are now EB-2 India applicants, resulting in delay in the movement of EB-2 India priority dates.   We would be happy to analyze your EB-3 case and help you if you can “port” it to EB-2 – please contact us for a free initial consultation.

Here is a summary of the May 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to September 22, 2005, and EB-2 India remains unchanged at February 1, 2005.  This is the second month in a row when EB-2 India has remained unchanged.
• EB-3 ROW moves forward by almost three (3) months to April 22, 2003, EB-3 China moves forward also by almost (3) months to April 22,  2003, while EB-3 India moves forward by three (3) weeks to October 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001 with the exception of Mexico which is now unavailable.

Here is a summary of the April 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to August 22, 2005, and EB-2 India remains unchanged at February 1, 2005.
• EB-3 ROW moves forward by almost fix (6) weeks to February 1, 2003, EB-3 China moves forward also by six (6) weeks to February 1, 2003, while EB-3 India moves forward by over two (2) months to September 8, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

Here is a summary of the March 2010 Visa Bulletin:

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to July 8, 2005, and EB-2 India, moves forward by only one (1) week to February 1, 2005.
• EB-3 ROW moves forward by almost three (3) months to December 15, 2002, EB-3 China moves forward by almost three (3) months also to December 15, 2002, while EB-3 India moves forward by only one (1) week to July 1, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by three (3) weeks to May 22, 2005, and EB-2 India, again, remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by almost two (2) months to September 22, 2002, EB-3 China moves forward by almost two (2) months also to September 22, 2002, while EB-3 India remains unchanged.
• Other worker visa numbers remains unchanged at June 1, 2001.

Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

• EB-1 remains current across the board.
• EB-2 ROW remains current, EB-2 China moves forward by one (1) month to May 1, 2005, and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW moves forward by two (2) months to August 1, 2002, EB-3 China moves forward by two (2) months to August 1, 2002, while EB-3 India moves forward by almost two (2) months to June 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one month to June 1, 2001.

• EB-1 remains current across the board.
• EB-2 China moves forward by a week to April 1, 2005 while EB-2 ROW remains current and EB-2 India remains unchanged at January 22, 2005.
• EB-3 ROW remains unchanged at June 1, 2002, EB-3 China moves forward by three months to June 1, 2002, while EB-3 India moves forward by one week to April 22, 2001.
• Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to April 22, 2001.

EB-2 Numbers Indicate Minor Movement

The October 2009 Visa Bulletin dates suggest a minor forward movement as follows:

• EB-2 China moves forward by a little over two (2) months from January 8, 2005 to March 22, 2005;
• EB-2 India moves forward  by two (2) weeks from January 8, 2005 to January 22, 2005; and
• EB-2 Rest of World (“ROW”) remains current.

EB-3 Visas Are Available Although Forward Movement May Be Slow

As expected, the October 2009 Visa Bulletin brings a number of changes.  Most notably, the EB-3 category is no longer unavailable and the visa cut-off dates are as listed below.  We also provide the visa cut-off dates from the April 2009 Visa Bulletin which was the last time EB-3 visas were available.

• EB-3 China has a cut-off date of February 22, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin);
• EB-3 India has a cut-off date of April 15, 2001 (compared to November 1, 2001 in the April 2009 Visa Bulletin);
• EB-3 ROW has a cut-off date of June 1, 2002 (compared to March 1, 2003 in the April 2009 Visa Bulletin).

We have included a comparison with the April 2009 EB-3 visa numbers to illustrate that even though the State Department has made EB-3 visas available, the fact that the government chose to set cut-off dates in October 2009 which are earlier than the April 2009 cut-off dates indicates that a slow movement in EB-3 over the 2009 fiscal year is to be expected.

EB-5 Is Unavailable

The EB-5 category is now unavailable.  This is due to the expiration of the EB-5 Pilot program on September 30, 2009, which means that no visas can be issued after September 30 under the EB-5 category until Congress extends it.  Once this happens, the visa availability is expected to become current.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 8, 2005.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

Based on the last few visa bulletins, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China and India:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are October 1, 2003.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the August 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

A U.S. medical degree is obtained after completing a bachelor’s degree and as a result, a U.S. medical doctor degree is considered to be an advanced degree. In many other countries a person may be admitted to medical school directly out of high school. In these instances the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than is required for a less specialized foreign bachelor’s degree (generally 3-4 years in duration.) In some countries the name of the degree is “Bachelor of Medicine, Bachelor of Surgery”, and the program of study may involve ONLY medicine, to include some limited basic sciences. A foreign medical degree may qualify as the equivalent of a U.S. MD degree and thus an advanced degree for EB2 purposes if, at the time of the filing of the labor certification application, the following two conditions are met:

1.  The alien beneficiary:

A. Has been awarded a foreign medical degree from a medical school that requires applicants to obtain a bachelor’s degree equivalent to a U.S. bachelor’s degree as a requirement for admission, or;

B. Has been awarded a foreign medical degree and a foreign education credential evaluation is provided that credibly describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States, or;

C. Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) examination or an equivalent examination, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2 & 3,

2.  The alien beneficiary was fully eligible for the position described on the labor certification application, on the date that it was filed, by establishing that:

A. He or she had a full and unrestricted license to practice medicine in the state of intended employment and continues to hold such an unrestricted license, or;

B. His or her foreign medical degree is shown to meet the medical degree requirements to be eligible for full and unrestricted licensure specified by the medical board governing the place of intended employment.

The Neufeld memorandum further describes requirements for filing a petition for a foreign national holding a medical doctor degree.

The main reason for the temporary suspension of the I-140 premium processing was the increased volume of I-140 applications in the summer of 2007.  USCIS has now determined that due to its backlog  reduction efforts, it can continue processing I-140s on expedited basis.

Not All I-140s Would Qualify – EB-1(c)  and EB-2 NIW Are Excluded

USCIS  has indicated that not all Form I-140 filings would qualify for premium processing.   The government will accept premium processing requests for Form I-140s involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium processing service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Conclusion

With the reinstatement of premium processing for most I-140s, USCIS provides an important strategic tool for many employment-based green card applicants.  While premium processing for I-140 was available for holders of H-1B status who were in danger of “H-ing out”, the expanded scope of premium processing now allows many petitioners (and their respective beneficiaries) to speed up the I-140 process in order to gain advantage of H-1B 3-year renewal provisions or to generally speed up the processing of one’s green card application.

While upgrading a pending I-140 case to premium processing makes sense in some cases, it is not cost-justified in all cases.  We are happy to consult and help in evaluating the best course of action.

We read a recent piece written by AILA President Bernard Wolfsdorf commenting on the visa number predictions.  We thought that it may be an interesting read and follow-up on the conversation started in the immigration community regarding the visa numbers scheme.

“Does it make sense to educate international students at our top universities and medical centers and then, when at the point where they are ready to contribute to our economy, say it’s time to go home? It has been 20 years since President Bush Senior increased the quota for employment immigrant visas. While scientific advances have occurred at lightning speed in these past two decades, employment visa quotas have been hopelessly encased in amber.”

Bernard P. Wolfsdorf, Immigrant Visa Numbers Hopelessly Encased In Amber, June 12, 2009.

Lower Unused Visa Numbers in EB-4 and EB-5.  According to Mr. Oppenheim, EB-4 and EB-5 have seen increased demand which may result in retrogression.  However, what is more important, the high demand of EB-4 and EB-5 has resulted in a fewer visa numbers being made available to other categories, such as EB-2 and EB-3.  This has resulted in an increased pressure on the visa numbers for EB-3, EB-2 and possibly EB-1 for China and India.

EB-1 Demand Increased; EB-1 China or India May See Retrogression.  Mr. Oppenheim noted that demand for EB-1 Rest of World (ROW) has increased but it expected to remain current until the end of FY2009.  However, EB-1 for China and India, while current for July 2009, may require the establishment of a cut-off date if EB-1 demand remains heavy.  This is important because EB-1 for China and India may no longer be the “instant concurrent-filing” category.  We urge our readers and clients from China or India who are considering EB-1 to consider filing as early as possible.

EB-2 China and India – “Grim” Prognosis; Long Delays Are Likely.  Mr. Oppenheim did not deliver good news for EB-2 China and India applicants.  The July 2009 cut-off date is January 1, 2009, and may become unavailable in August or September 2009.  There are reported 25,000 EB-2 India cases which have been reviewed by USCIS and are waiting at the Department of State for a visa number. By law, all countries have a limit of 2,800 EB-2 numbers per year plus any “fall across” and “fall down” numbers from EB-1, EB-4 or EB-5 categories or from the EB-2 category from other countries.  Therefore, and unfortunately, without legislative relief, the waiting time for Indian or Chinese EB-2 applicants may be measured in years, even decades.

EB-3 ROW.  The EB-3 will remain unavailable the remainder of this fiscal year. As the Department of Labor worked its way through the long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.

EB-3 China, India and Mexico.  According to Mr. Oppenheim, EB-3 numbers for China, India and Mexico applicants will be unavailable for the remainder of the fiscal year.  Furthermore, it is estimated that, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on “current demand” in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established (meaning that these predicted cut-off dates may retrogress even more).

General Numbers Update.  Finally, Mr. Oppenheim provided some numbers on the cases pending at various stages of immigrant processing.  There are approximately 25,000 EB-2 and 25,000 EB-3 applications queued at the State Department awaiting visa numbers.  There are ~2.7 million family-based applicants on the waiting list for consular processing.  There also could be ~50,000 employment-based applicants on waiting lists for consular processing.

Conclusion.  The news from Mr. Oppenheim is not good.  Long delays and limits on some categories are to be expected.  Indian and Chinese applicants for EB-2 and EB-3 face years, even decades-long, wait period for a visa number.  EB-1 is also under pressure for Chinese and Indians.   We will continue monitoring the visa numbers and provide updates and reliable predictions as we counsel our clients on the best ways to avoid lengthy green card delays.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 China:  EB-2 ROW (Rest of World) is current, EB-2 China and EB-2 India are January 1, 2000.
• EB-3 is unavailable for all categories.
• Other worker visa numbers are also unavailable.

In one of the comments to the July 2009 Visa Bulletin, the State Department notes that the retrogression of EB-2 China has been necessary to take into account the high demand of visa issuances so far this fiscal year.   As a result, visa availability during the final quarter of the fiscal year is likely to remain very limited as some employment-based categories approach or have already reached their annual numerical limits.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories except as noted above for EB-2 India:  EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India retrogressed to January 1, 2000.
• EB-3 is unavailable for all categories.
• Other worker visa numebers are also unavailable.

In one of the comments to the June 2009 Visa Bulletin, the State Department notes that “applicant demand for numbers, primarily for adjustment of status cases at Citizenship and Immigration Services offices, has been extremely heavy throughout the year.   As a result, visa availability during the final quarter could become limited as categories approach their annual numerical limits.”   At this point, it is not clear whether EB-2 will stay at January 1, 2000 for this month (June 2009) only or it will remain there for a few months due to the extremely heavy EB-2 India visa number demand.

About the AAO

As a short preliminary background matter, the AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of May 1, 2009.

Among the most notable AAO processing times:

• H-1B appeal takes 15 months (compared to 13 months when last reported in March 2009);
• I-140 EB1 Extraordinary Ability takes 10 months, Multinational Manager or Executive takes 9 months while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 24 months (compared to 21 months in March 2009) while EB2 (NIW) is current (meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 21 months (compared to 20 months in March 2009) while EB3 Other Worker takes 16 months (compared to 22 months in March 2009) on appeal.

Read the full AAO Processing Times report.

• EB-1 remains current across the board.
• EB-2 remains unchanged for all categories – EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India remains February 15, 2004.
• EB-3 applicants is unavailable for all categories.
• Other worker applicants are also unavailable.

The cut-off dates for the EB-3 and “Other Worker” categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits.   Despite these efforts, the amount of demand received from USCIS for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high.  As a result, these annual limits have been reached and both categories have become “unavailable.”    Visa availability in these categories will resume in October, the first month of the new fiscal year.

Please contact our office and we would be happy to evaluate your case and advise on the possibility of using or refiling your case in the EB-2 category.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (compared to 14 months when last reported in January 2009);
• I-140 EB1 Extrordinary Ability and Multinational Manager or Executive categories both take 9 months while EB1 Outstanding Professor or Researcher category takes 8 months on appeal;
• I-140 EB2 (Advanced Degree) takes 21 months while EB2 (NIW) is current (meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 20 months while EB3 Other Worker takes 22 months on appeal;

Read the full AAO Processing Times report.

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

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

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

The good news for EB-2 applicants from India and China continues this month as well – the dates for EB-2 India and EB-2 China moved by two months, from June 1, 2006, to August 1, 2006.  There are no other changes to the employment-based dates.

However, there were some bad news for employment-based applicants in the EB-3 category.  Earlier in July, when the EB-3 category became “Unavailable” the comment was that it is expected that in October, upon the beginning of the new fiscal year, the EB-3 dates would return to their June 2008 values.  However, the State Department has revised this expectation and has indicated “the that continued heavy demand in those categories may require the establishment of cut-off dates which are earlier than those which had applied in June. ” Although this backward movement is not certain yet, a formal decision is expected in September.

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

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

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

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

The USCIS has released some clarifications on the I-140 premium processing procedure.

First, not all cases of I-140s are eligible for premium processing.  Prior to the suspension of premium processing for I-140’s last Fall, only certain I-140 case types were eligible. For example, National Interest Waivers and Multinational Managers were not eligible for premium processing. Those case types are still not eligible for premium processing, even in an “H-out” situation.

Second, the I-140 premium processing is available if the beneficiary is in H-1B status in the U.S.

Finally, the current program is only available if the beneficiary is within 60 days of the end of the 6th year of H-1B time. The purpose of this premium processing option was to benefit those individuals who could not qualify for a one-year extension and who needed an approved I-140 to remain in the US.  It was originally assumed that the term “6th year” could be read to mean “last year” in H-1B time. However, USCIS has said that they will be taking the term “6th year” literally. Therefore, if the beneficiary is in the 7th or 8th year of H-1B time, your premium processing request may not be accepted.

The USCIS has received comments on these three clarifications and is working to consider, and possibly, adjust the scope of the I-140 program.  However, until USCIS releases modifications of the program, the I-140 premium processing program remains somewhat limited in scope and applicability.

This is excellent news for applicants in the EB-2 India category.  Stay tuned as we wil update this post with more information as the official State Department Visa Bulletin is distributed.

EB-3 Unavailable.  The July 2008 Visa Bulletin is out.  As we predicted in May, the Employment Based Third Category (EB-3) is now unavailable until the end of the Fiscal Year in October.   This means that no EB-3 cases will be approved until at least October.  It is expected that in October the EB-3 priority dates will return to their May/June level.

Good news for EB-2 India and China.   The July 2008 Visa Bulletin, however, brings good news to EB-2 applicants from India and China.  According to Section 202(a)(5) of the Immigration and Nationality Act, the total demand for EB-2 visas from countries other than India and China has been insufficient to meet the number of available visas; therefore, such estimated excess numbers have been allocated to EB-2 India and China.  It is expected that because Indian nationals constitute a larger proportion of the currently pending EB-2 cases, most of the newly available EB-2 visas will go to Indian nationals.

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

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

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

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

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

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

Read the full June 2008 Visa Bulletin.

EB-2 China and EB-2 India moved slightly forward; unfortunately this movement was very minor, only by a month, to January 2004 for both.

See the full May 2008 Visa Bulletin.

During the Period, there were 44,090 PERM applications received, there were 12,600 cases certified and, as of March 23, 2008, there were 28,000 cases pending.

Among the highlights provided by DOL are that 66% of the certified PERM cases were H-1B workers.  The top five states of intended employment were California, New York, New Jersey, Texas, and Florida.  Among the countries, India was top, followed by China, South Korea, Philippines, Mexico, Canada, and the U.K.

See the full April 2008 Visa Bulletin.

EB3 – Employment-based, Third Preference

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

EB2 – Employment-based, Second Preference

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

The American Immigration Lawyers Association has approached Charlie Oppenheim, the Chief of Immigrant Visa Control and Reporting at the State Department, for comment on the EB-2 India unavailability.  In November 2007 the indications were that that demand for EB-2 India visa numbers would place significant pressure on the overall annual visa limitation, leading to rolling back the priority date for EB-2 India once for December 2007 Visa Bulletin to 01JAN02 and again for January 2008 Visa Bulletin to 01JAN00.  Even with those significant retrogressions, there was a demand for 300 EB-2 India visas in December.

It is possible that India EB-2 can become again available if it appears that demand for EB-1 India will not exceed the annual limit but this determination will not be possible until the second half of the fiscal year (April 08 or later).

This visa “unavailability” was anticipated as a result of the surge in demand in this visa category. Many foreign workers who had previously applied as EB3 (employment-based third preference) were caught in the labor certification backlog which lasted, for some, people several years. Many of these employees were able to refile their applications under the more attractive EB3 category due to experience they gained while waiting for labor certification approval. As a result, the number of EB3 petitions rose sharply over the past months and quickly exhausted the number of available EB3 visas.

The October 2008 Visa Bulletin, due to be released in September 2008 should “open” again EB3 visas for Indian nationals. Note that EB2 visa numbers are “current” for all other nationalities except China which is as of January 1, 2003.