Labor Immigration Law

United States Labor Immigration Law News and Analysis

I-140 Articles

EB-1 Processing Statistics

USCIS has provided some interesting statistics relating to the processing of Form I-140 petitions for classification of foreign nationals under the employment-based first (EB-1) category.    The statistics reflect the number of receipts, approvals, denials and RFEs issued during a fiscal year and are helpful in understanding general EB-1 adjudication trends.

The EB-1 Statistics

Texas Service Center is More Popular.  The Texas Service Center is clearly the more popular service center, judging by the number of filings.   It received between two and three times the amount of EB-1 applications filed with the Nebraska Service Center.  For example, the Texas Service Center received 9,981 EB-1 I-140 cases in FY2011 (until 19, 2011), while Nebraska received 3,811 for the same period.

Number of EB-1 Filings Remains Steady.  Because the FY2011 data is for the year until July 19, 2011 (or based on approximately 10 months), the overall number of filings in 2010 should end up being similar to the total number of EB-1 filings in 2011, when the reported EB-1 FY2011 numbers are calculated on yearly basis.

Comparison of the Rate of RFEs and Denials.   It is also interesting to note that in 2010 Nebraska had a significantly higher rate of RFEs and denials across all EB-1 categories compared to Texas.  For example, in 2010, Nebraska issued RFEs in 67% of the cases (Texas was at 26%) and denials in 36% (Texas was at 18%).   However, so far in 2011, Nebraska is generally at par with Texas.  So far in 2011, Nebraska issued RFE in 38% (Texas is at 29%) and denies 16% (Texas is at 13%).     It should be noted, however, that some of these numbers carry over from one fiscal year to another – for example, an RFE may be reflected in one year’s numbers, while a denial would be reflected during next year’s number simply because the denial was issued after the new fiscal year has started.   As a result, a scientifically-accurate comparison of percentages across fiscal years is not possible based on this data.

Conclusion

While we recognize that the EB-1 adjudication statistics reported by USCIS do not permit accurate calculation of percentage chances of RFE, denials and approvals, the numbers are very helpful nonetheless in understanding trends at the Texas and Nebraska Service Centers.    Based on these numbers, the Nebraska Service Center’s rate of favorable adjudications is inching closer to the Texas Service Center.   Also, we note that the rate of filings has remained steady over the past two years.

Our office handles a number of EB-1 filings in all subcategories and we are happy to review and assist with EB-1 cases.   Please feel free to contact us for review and analysis of EB-1 cases.

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Texas Service Center Premium Processing Unit Sends Old I-140 Receipt and Approval Email Notices (Updated)

It may seem like an April Fools Day joke at first sight, but apparently it is not.  The Texas Service Center has been issuing and emailing premium processing receipt and approval notices for I-140 cases filed as far back as April 2010.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

Receipt Notices

The Texas Service Center has received the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Date Received: 05/04/2010
Petitioner: PETITIONER, INC.
Priority Date: To Be Determined
Beneficiary: BENEFICIARY NAME

The Form I-797 Receipt Notice will follow in the mail.

Approval Notices

The Texas Service Center has approved the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Petitioner: PETITIONER COMPANY, INC.
Priority Date: 06/01/09

Beneficiary: BENEFICIARY NAME
DOB: 0X/0X/71
Classification: E21

The form I-797 Approval Notice will follow in the mail.

Please note that this e-mail message is being sent as a
courtesy and cannot be used as evidence of nonimmigrant
status. Nor can this message be used as evidence to procure
an immigrant visa.

Pending and Approved I-140 Cases Seem to be Unaffected

These notices seem to be for cases previously filed with the TSC’s premium processing unit for which email receipt and approval notices were never issued.   Our office has handled a number of TSC filings, including in the relevant period of the past 12 months, and we have never received the (expected) I-140 receipt or approval notices.   Looks like they are arriving now, months after the cases have been processed and approved.  To our knowledge, paper I-140 receipt and approval notices from TSC have not been affected.

Explanation of the Old I-140 Email Notices

There has not been an official explanation by TSC or USCIS yet.  An unconfirmed theory for the reason behind this sudden deluge of I-140 receipt and approval email notices is a glitch with TSC’s email servers.  It is possible that the outgoing email server at TSC was misconfigured and was holding all outgoing I-140 receipt and approval notice emails.   In an interesting coincidence, the problem seems to have been “fixed” on April 1st.

Update from USCIS

April 1, 2011, 5:12 pm.   USCIS has more or less confirmed our theory that this sudden outburst of delayed emails was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused.”

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Update on EB-2 Visa Availability: Low EB-1 Demand to Cause EB-2 India to Advance

A recent update from USCIS and Charles Oppenheim at the Department of State (the person who is responsible for the Visa Bulletin and visa number allocations) should provide some hope to applicants in some categories, but most notably to the EB-2 India category.

Low EB-1 Demand to Cause Visa Number Spillover to EB-2

USCIS has reported that the demand for EB-1 visa numbers has dropped significantly since October 1, 2010.   As a result, the planned visa number demand in this category can be adjusted downwards.  By doing this, the unused EB-1 numbers can be allocated to other categories.  This is Mr. Oppenheim’s statement:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

EB-2 India Expected to Move Forward (Substantially?) in the May 2011 Visa Bulletin

Based on Mr. Oppenheim’s comments, it is expected that the EB-2 India category will move forward in the May 2011 Visa Bulletin (please see our Visa Bulletin topic page where updates are posted immediately).  This should be a welcome development for the thousands of EB-2 India filers who have been waiting for 8 months now without any movement in this category.   While we cannot estimate by how much EB-2 India will advance, we hope that the move would be substantial, based on the 12,000 available visa numbers mentioned by Mr. Oppenheim.

Porting of EB-3 India to EB-2 India to Continue — Heavy Demand in EB-2 Expected

Our office has been advising over the past couple of years, and we continue to do so, that all EB-3 India filers who are now eligible to port their priority dates into EB-2 to do so.   In many cases porting is extremely helpful in advancing one’s green card application substantially, especially when the EB-3 priority date, as ported to EB-2 becomes current, and especially considering a possible significant forward movement in EB-2 India.   Please contact us if we can provide analysis of your ability to port your EB-3 priority date into EB-2.

EB-2 India Expected Forward Movement to Cause Increase in I-485 Filings and Interfilings

We also expect the EB-2 India forward priority date movement to cause an increase in I-485 adjustment of status filings for both primary beneficiaries or for family members who have not been able to file I-485 previously (most often during the summer of 2007).

Additionally, many I-485s remain pending and “connected” to I-140s which reflect an older EB-3 priority date which is not current.  If a subsequent EB-2 I-140 has been filed and if the earlier EB-3 priority date has been ported into the new I-140, an “interfiling” may be needed to notify USCIS and have them “connect” the pending I-485 with the new, and current, EB-2 I-140.

Please contact our office if we can help you prepare and file your I-485 application or if you need assistance with interfiling your pending I-485 to a new and (soon to be) current EB-2 I-140.   We also invite you to subscribe to our free weekly immigration newsletter to obtain alerts of related news and developments.

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Filing a New I-140 When Another I-140 Is Pending on Appeal

In addition to the numerous inquiries on filing a new I-140 when a previous I-140 is pending on appeal, our office handles a number of such new I-140 filings.   Pursuant to USCIS guidance, a previously approved labor certification which was timely used to file an I-140 can, in many circumstances, be subsequently used to file a new I-140 if the initial I-140 was denied.   Many initial I-140 denials are appealed with the Administrative Appeals Office (AAO); in such cases, the issue becomes whether the petitioner can file a new I-140 while the initial I-140 is pending on appeal.

Background

USCIS current policy is that when a denied I-140 is appealed and is sent by a service center to the AAO for adjudication (which can take up to two years months), the service center will hold in abeyance a newly refiled I-140 the same Beneficiary in the same EB classification.  The question becomes whether a new I-140 for the same beneficiary but for a different classification would be also held in abeyance?

Recent Texas Service Center Guidance

A recent guidance from the Texas Service Center (TSC) has indicated that whether or not an I-140 filed for a Beneficiary in a different classification will be held in abeyance while an appeal is pending is determined on a case-by-case basis and depends on the reason for the initial denial.   As an example, if an I-140 is denied for lack of ability to pay, and the ability to pay issue is appealed, a subsequent identical I-140 filing, even in a different classification, would typically be held in abeyance pending the outcome of the appeal.

Considering the long AAO processing times (20-24 months for I-140 appeals), before an I-140 appeal is filed, it is important to evaluate the alternatives and the options of filing a new I-140 without appealing the previously-denied I-140.  Many beneficiaries need to file an appeal in order to be able to obtain H-1B extension benefits; however, if this is not a factor, appealing I-140 may not provide much of a strategic benefit, in fact, it may only delay the I-140 process.

How We Can Help

Our office handles a number of I-290B I-140 AAO appeals and we would be happy to review your case and advise you on the best options.  Please do not hesitate to contact us for a free initial consultation.  Also, please feel free to subscribe to our weekly newsletter to receive free immigration law updates.

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CDC Reverses Course: No HPV Vaccine Required for Immigrants

In a shift in  policy, the CDC has announced that effective Decemeber 14, 2009, the HPV vaccine will no longer be required for immigrants applying for immigrant visa or adjusting their status from within the U.S.

Background About the Required Vaccinations

Under Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), any alien who seeks admission into the United States as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, is inadmissible into the United States if the alien is unable to present documentation of having received vaccination against “vaccine-preventable diseases, which shall include at least the following diseases: Mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee on Immunization Practices.”  Current guidance by the Center of Disease Control (“CDC”) includes the HPV vaccin to the list of vaccine-preventable diseases and is therefore required by girls and women between the ages of 11 and 26 who are seeking to become legal permanent US residents.  Those within this age range were required to get at least the first dose of the HPV vaccine, which protects against some strains of the virus blamed for cervical cancer. Additionally, the Gardasil shot was added to the vaccine list for immigrants in July 2008 by the CDC.

HPV Vaccine Requirement Controversy 

While HPV remains the single most widespread sexually transmitted disease in the country, only a small percentage of those infected with the virus will go on to develop life-threatening diseases like cervical cancer. The cost-effectiveness of the Gardasil vaccine (the HPV vaccine) remains largely in debate especially when young girls coming from a variety of foreign nationalities and cultures have to be subjected to medical exam and vaccination.  Additionally, the price of the vaccine, which is administered in three separate shots, can cost anywhere from $400 to $1000  (and the cost is often not reimbursable by insurance companies).

New CDC Guidance

Accordingly, CDC has announced a revised rule which becomes effective December 14, 2009, and under which the HPV vaccine will not be required for aliens seeking admission as an immigrant or seeking adjustment of status to that of an alien lawfully admitted for permanent residence.

In providing explanation to this change in policy, CDC recognized that genital infection with HPV is an extremely common infection due to its efficient transmission via sexual intercourse. There are approximately 6 million incident infections occurring annually in the United States. Over half of sexually active men and women will develop HPV infection at some point in their lives and 15% of all Americans have current infection with HPV.

Although there are millions of HPV infections annually, it is very difficult to distinguish those cases which resolve from those (about 10,000 per year) cases which result in cervical cancer.  Therefore, while HPV may be an age-appropriate vaccine for an immigrant applicant, HPV neither causes outbreaks nor is it associated with outbreaks (per explanation in the background section).  Further, HPV has not been eliminated, nor is in the process of elimination, in the United States. Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.

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Neufeld Memorandum on Form I-140 Successor-in-Interest

In a memorandum dated August 6, 2009, Donald Neufeld, the Acting Associate Director for USCIS Domestic Operations Unit provides new guidance and amends USCIS policy with respect to review of Form I-140 successor-in-interest (“SI”) amendments.  The goal of the new guidance is to update (the dated) USCIS policy in light of changing business realities with respect to corporate mergers and acquisitions.

Prior I-140 SI Standard

The prior standard by which I-140 SI filings were reviewed was that the I-140’s validity will be reaffirmed only if the successor company had assumed all of the rights, duties, obligations and assets of the original employer and continue to operate the same type of business as the original employer.  Additionally, the new employer had to establish its ability to pay the profferred wage specified on the labor certification.

The old standard, initially set forth in a 1993 Paleo memorandum, is quite old and does not reflect the realities of the corporate M&A and business practices where it is now rare that a successor company would assume all of the predecessor company’s rights and obligations.

New Standard for I-140 SI Review

According to the Neufeld Memo, for all SI I-140 petitions filed after August 6, 2009, the adjudication officers should focus  on the following factors:

1.  The Job Opportunity Offered By The Successor Must Be The Same As The Job Opportunity In The Original Labor Certification.

The job offered by the successor must remain unchanged with respect to rate-of-pay (upward adjustments due to passage of time are acceptable), job description and job requirements specified on the labor certification.   There cannot be any changes to the job which would affect the labor market test conducted initially by the predecessor company.  The job opportunity must continue to exist at all time and there must not be a substantial lapse of operations with respect to the successor company after the business transfer.

2. The Successor Company Bears Burden To Establish Continuing Eligibility In All Respects, Including Ability-to-Pay.

The successor company must demonstrate that all of the criteria for the visa classification initially proposed have been met.  This includes, but is not limited to, the predecessor’s ability to pay the profferred wage from the date of the filing of the labor certification (the “priority date”) until the date of the business transfer. Similarly, the successor must demonstrate that it is a valid “employer” under the USCIS regulations and that it has ability to pay the profferred wage.   The I-140 SI petition must also include evidence to establish that the sponsored employee possesses the minimum education/experience specified on the labor certification.

3. The Successor Must Fully Document The Transfer And Assumption Of Ownership.

The Neufeld Memo specifically addresses that the transfer of ownership must occur after the approval of the underlying labor certification.  Additionally, the successor must present evidence to document the business transaction such as:

  • contract of sale or similar document of the acquisition;
  • mortgage closing statements;
  • SEC Form 10-K;
  • audited financial statements;
  • documentation of the transfer of real property and business licenses;
  • copies of financial instruments used to executed the transfer; and
  • media or other reports of the business transfer.

When a specific unit of the predecessor unit is being transferred, the transferred unit must be clearly defined unit within the predecessor organization and that unit must be transferred in its entirety to the successor except certain unrelated liabilities.  As discussed above, the job offered to the alien beneficiary must continue to be in the transferred unit.

AC21 and Successor-in Interest

The Neufeld Memo specifically addresses the situations in which the alien beneficiary is entitled to port his or her process to a new employer under Section 106(c) of AC21.  In such cases, a SI entity need not file a new petition on alien’s behalf assuming AC21 conditions have been met (such as “same or similar job”).

SI Amendments Not Needed For Self-Sponsored I-140 Petitions

I-140 petitions filed in connection with visa categories which do not require labor certifications (EB-1 EA, EB-2 NIW) remain valid even if a business transfer has occurred.  There is no need of I-140 SI amendments in such cases.

New Labor Certification May Be Required In Certain Cases

If the successor entity cannot support the requirements outlined above a new labor certification setting forth the changed job conditions must be filed.   Specifically, USCIS required a new labor certification be filed when (1) the successor entity has not met the three factors outlined in the Neufeld Memo, (2) the labor certification is not valid for the new geographic area of the alien beneficiary’s proposed employment, or (3) there has been another material change in the job opportunity offered.

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NSC and TSC to Issue I-485 Denials Upon I-140 Denial

The Nebraska and Texas Service Centers (NSC and TSC, respectively) have informed that they will start issuing denials on pending I-485 upon denial of the underlying I-140 petition.

Until now, USCIS has a policy from a Memorandum of Feb. 28, 2003 from William R. Yates, “Procedures for Concurrently Filed Family-Based or Employment-Based Form I-485 when the Underlying Visa Petition is Denied” pursuant to which policy TSC has been using its discretion to wait 30 days before denying the I-485 applications, in case an I-290B was filed on the I-140 denial and TSC might be able to act on that at the Service Center level.

Under the new policy, both TSC and NSC will deny I-485 applications when they deny the underlying I-140 petition.   As a result, a motion to reopen/reconsider or appeal on Form I-290B will have to be filed not only on the I-140 denial but also for all of the I-485 denials (more than one of the direct beneficiary has dependents). This not only creates additional work for preparing and filing more I-290B forms, but also requires additional payments of the I-290B filing fee (which is $585.00 as of the time of this writing).

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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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Memorandum on Equivalency of Foreign Medical Degrees

Donald Neufeld, in a Memorandum dated June 17, 2009 provides some guidance on the equivalency of foreign medical degrees for the purpose of qualifying for the EB-2 category.

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.

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I-140 Premium Processing Service to Resume June 29, 2009

After USCIS suspended temporarily the I-140 premium processing service on July 2, 2007, we have been constantly fielding questions on when the temporary suspension would end.  Over the past few weeks there was increased speculation that premium processing for Form I-140 would resume.   Earlier this week, USCIS confirmed that in fact premium processing for I-140 resumes effective June 29, 2009.

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.

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