Labor Immigration Law

The September 2008 Visa Bulletin has been released by the Department of State.  It brings a mix of good and bad news.

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.

Section 245(a) of the Immigration and Nationality Act (INA) allows for the adjustment of status (I-485) which so many of our clients and readers are well familiar.  Section 245(c) of the INA establishes eight (8) bars to adjustment of status.  However, adjustment of status based on employment-based immigrant visa are exempt from three of these bars, pursuant to Section 245(k).

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.

We wrote earlier about the availability of limited I-140 premium processing filings.  It is only available to certain H-1B holders who “H-out” of their status and for whom the only way to remain on H-1B status would be a I-140 premium processing filing.  Please read our earlier article for details on this.

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.

BREAKING NEWS

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.

USCIS is proposing to amend the regulations concerning the concurrent filing of employment-based I-140 and I-485 petitions as long as visa number is available to the alien beneficiary. The proposed rule seeks to amend the rule so that a worker applying for I-485 adjustment of status must be the beneficiary of an approved immigrant petition prior to the filing of the adjustment application.

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.

The June 2008 Bulletin is out.  Among the employment-based visa numbers, there is a slight forward movement in the EB-2 category for China and India, by about 3 months, from January 2004 to April 2004.

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.

The May 2008 Visa Bulletin is out.  Among the employment-based visa numbers, unfortunately, there was only a slight forward movement for most categories.  The most notable movement was for employment-based third preference category (EB-3) for all countries except China, India, Mexico.  The priority date for such EB-3 workers moved from July 2005 to March 2006.  EB-3 Mexico and EB-3 Philippines moved to July 2002 and March 2006, respectively.

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.

The Department of Labor (DOL) has released the PERM statistics for the first two quarters of its Fiscal Year (FY) 2008, covering the period between October 1, 2007, and March 31, 2008 (the “Period”).

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.

The March 2008 State Department Visa Bulletin is out.  The most significant development is the EB3 “worldwide” (everyone except from China, India, Mexico and the Philippines) category applicants.

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.