Labor Immigration Law

United States Labor Immigration Law News and Analysis

I-130 Articles

Update on Long-Pending I-130 Petitions

After the significant forward movement in many of the family-based preference categories in the fall, the government has received a significant number of I-130 family-based immigrant petitions in a number of preference categories.  In an effort to process these pending I-130 petition in a more efficient manner, in November 2010, USCIS transferred approximately 36,000 I-130 petitions from their California Service Center to their Texas Service Center.   USCIS hoped that this redistribution of work would result in more timely adjudication of these petitions.

However, according to USCIS, due to a number of unforeseen circumstances at their Texas Service Center, many of these cases have not been processed and are beyond the estimated processing times.   On Feb. 7, 2011, USCIS announced a rapid response plan to expedite the adjudication of these  petitions.   Ironically, the rapid response plan has been to transfer a “large number of these Immediate Relative petitions back to [their] California Service Center to take advantage of resources currently available”.     USCIS has indicated that petitioners will see an action such as an approval, denial or a Request for Evidence (RFE) on their case from the California or Texas Service Centers by the end of  February.

Also, as of February 14, 2011, USCIS provided an update on the processing status of these 36,000 cases:  10,264 have been approved; 55 have been denied; 4,137 have been issued a request for evidence or notice of intent to deny; and 408 have been referred to a local USCIS office for interview.   Based on these numbers, it seems that USCIS is less than halfway through reviewing these 36,000 I-130 petitions and, while we remain optimistic, we are not sure if they will be able to initially review every single one of the remaining approximately 20,000 by the end of February.

We will continue to monitor developments and updates from USCIS.  If you haven’t already, please feel free to subscribe to our free weekly newsletter or contact us with any questions or comments.

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K-3 Visa Application Procedure Changes

The Department of State (DOS) announced recently that it is changing the procedure for K-3 (spouse) visa applications filed at U.S. consulates abroad.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.

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FBI Name Check Backlog Eliminated

USCIS has announced that, in conjunction with FBI, it has met its goal of eliminating the FBI National Name Check Program backlog.

The goal was to achieve a performance (which can actually be sustained going forward) of completing 98 percent of name checks requests submitted by USCIS within 30 days and the remaining 2 percent within 90 days.   USCIS has announced that this performance level will become the standard.

USCIS has noted, however, that any information provided by the FBI through these checks may require further evaluation and may need additional interaction with agencies outside USCIS to obtain updated or additional information. This could result in additional delays in processing and is not governed by the processing goals contained in the joint business plan.  There is no estimate on the percentage of such cases in which additional checks (and the corresponding delays) may be expected.

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General Updates from the Nebraska Service Center

We have received some general updates from the Nebraska Service Center (NSC) and we would like to share them with you as they provide some useful insight into NSC’s operations:

Backlog.  The net overall backlog at the end of first quarter of FY2009 was 250,000 cases; reduced to 87,500 cases by the end of the 2nd quarter of FY2009.  NSC expects that by June 2009 there would be no case backlog.  Additionally, the I-140 backlog was 40,000 in October 2008, as of May 2009 it is down to 10,000.

Receipts.  There has been a notable decrease in receipts in new cases.  There were 80,000 issued in October 2008 while there were less than 40,000 receipts issued in January 2009.  There has been a slight increase since January to about 50,000 receipts per month.  Since receipts have decreased, the adjudicators have been able to catch up and even review cases from other centers.  NSC has been reviewing I-130 from the California Service Center and some standalone I-140s from the Texas Service Center to help reduce the national backlog.

Preadjudicating I-485s.  The EB-485 at NSC has been “pre-adjudicating” cases to try and have them done but-for the priority date being current.  This means that it is possible to obtain RFEs or NOIDs on cases which do not have current priority dates.

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Annual Statistics on Green Cards

The Department of Homeland Security’s Office of Immigration Statistics has released its annual U.S. Permanent Residents: 2008 report.   The report provides a summary of the approvals of the various types of legal permanent resident (LPR) petitions.  According to the report, in 2008, a total of 1,107,126 persons became LPRs.  Of these, 58% already lived in the U.S. (and adjusted status, Form I-485).  Nearly 65% were granted LPR based on family relationship with a U.S. citizen or LPR.  The leading countries were Mexico (17%), China (7%) and India (6%).

The report provides a very useful breakdown by category and year which allows us to analyze the trends in green card approvals.  It is important to note that both 2007 and 2008 noted a slight decrease in the total number of green cards given.  In 2006, DHS recorded  1,266,129 green cards.  The decrease in 2008 is wholly attributed to a decrease in the family-based petitions. Despite this slight decrease, the numbers of green cards approved for each of the family-based categories remained fairly stable over the past three years.

The employment-based petitions in 2008 increased from 159,081 (2006) to 162,176 (2007) to 166,511 (2008).  It is interesting to note that the number of EB-1 petitions remained stable, while the number of EB-2 green cards approved increased significantly, more than 3 times from 21,911 (2006) to 70,046 (2008).   On the other hand, EB-2 recorded a significant decrease, from 89,922 (2006) and 85,030 (2007) to only 48,903 in 2008.  What do these numbers mean?  We think that they suggest a trend in that many applicants for green cards who are in EB-3 are, after many years of waiting, trying to upgrade and ultimately succeeding in obtaining their green cards approved under the EB-2 category.

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2009 Poverty Guidelines Become Effective For Affidavit of Support (I-864) Filings

The Department of State (DOS) has released a cable to its consular posts to begin using the 2009 poverty guidelines in calculating the levels of income and assets required by immigrant visa petitioners and joint sponsors.  DOS requires that when processing immigrant visa cases subject to the Affidavit of Support (I-864) requirement, consular posts must use 125 percent of the applicable poverty guidelines as the minimum income that a petitioner and/or a joint sponsor must demonstrate, or 100 percent for an active member of the U.S. Armed Forces sponsoring his or her spouse or children.

The 2009 poverty guidelines were released on January 23, 2009, by the Department of Health and Human Services. The  DOS cable directs all consular posts to begin using the new guidelines and require that immigrant visa petitioners and joint sponsors completing Forms I-864 and I-864EZ (Affidavit of Support) to show sufficient income/assets to comply with the new guidelines.  The effective date is March 1.

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Guidance on Retaining Priority Dates

The Vermont Service Center (VSC) has issued a practice pointer on the circumstances under which VSC will transfer a priority date to a subsequent petition.

Retaining an earlier priority date is possible when:

  1. If the same petitioner (employer) and beneficiary (employee) are parties to both the original and the subsequent petitions (under 8 C.F.R. 204.2(h)(2)) and:
    1. the subsequent petition is for the same preference classification;
    2. the original petition has not been terminated pursuant to 203(g);
    3. the original petition has not been revoked pursuant to 205; and
    4. an immigrant visa has not been issued to the beneficiary based on the original petition.
  2. If the Service erred in any way on the prior petition, an earlier priority date may be granted to correct the error on the subsequent petition.
  3. If derivative beneficiary of a family-based second preference immigrant petition (F2A) ages out (under 8 C.F.R. 204.2(a)(4)).
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Immigration Applications at All-Time High, May Take Years to Clear

The USCIS Director Emilio Gonzalez appeared yesterday (01/17/2008) in front of the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and in written testimony he talked about the unprecedented volume of immigration applications filed with his agency.

uscis-receipts-1994-2007.jpgAs the chart illustrates, the number of visa applications following the July 2007 visa fees increased dramatically. This is ironic since the goal behind this July 2007 visa fee increase was to eliminate the processing backlog that plagued many visa applications. According to Gonzales, however, the USCIS did not anticipate the extremely high volume of applications, mainly resulting from the forward movement in many visa priority dates in the July 2007 Visa Bulletin. As a result of this forward movement in the employment-based visa numbers, the USCIS received in the summer months of 2007 approximately 300,000 adjustment of status applications, along with work authorization and travel (advance parole) documents, making a total of approximately 800,000 applications. From June through August 2007 the USCIS received over 3 million applications and petitions of all types (compared with 1.8 million for the same period in 2006).

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

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

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USCIS Initial Data Entry and Receipt Notices Status

As of January 4, 2008, the USCIS has completed initial data entry and issued receipt notices for applications and petitions received on or before the dates below.

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

Nebraska Service Center
- All Forms                Current

Texas Service Center
- All Forms                Current

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

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

Los Angeles Lockbox
- All Forms                    Current

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