Labor Immigration Law

We have received some inquiries about transfers of I-140s from the Texas Service Center (TSC) to the Nebraska Service Center (NSC).  There also seems to be some discussion on various Internet discussion boards as to what is the reason behind this transfer.

The NSC Liaison has confirmed that TSC transferred a number of standalone I-140s to NSC in order to help achieve the target 4-month processing time.

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.

We have been receiving calls and emails from employment-based applicants for green card asking us whether they have a second green card process started by a new company.  Generally, the inquiries are from EB-3 beneficiaries who are eligible and would like to start an EB-2 application.  Most of these inquiries come from individuals from countries for which visa numbers are not available or severely backlogged (India, for example).

Beneficiaries who have an I-140 approved are eligible to retain their priority date if they have another I-140 approved for the same or a different EB category.   Under 8 CFR § 204.5(e), if more than one I-140 is approved for a single beneficiary, the beneficiary gets the benefit of the earliest priority date even if the I-140s are approved in different EB categories.

In a recent USCIS/AILS Liaison exchange, USCIS has acknowledged that the approval notice for the second I-140 should automatically reflect the earlier priority date if the beneficiary is eligible to retain it.  However, USCIS has confirmed our practice at the Capitol Immigration Law Group to clearly mark the the second I-140 filing (by bright cover sheet and including a copy of the earlier I-140 approval notice showing the earlier priority date).   USCIS has advised that second I-140s which do not retain the earlier priority date should be corrected by calling the NCSC (or Division 12 at CSC).

About 6 months ago, USCIS made premium processing available to certain cases where the I-140 beneficiary is in danger of  H-ing out. (Our original stories.)  USCIS has just announced that it is expanding the I-140 premium processing program.  Currently, only beneficiaries who are in H-1B status at the time of  the filing of the I-140 may request premium processing.  The new program, which becomes effective March 2, 2009, will allow beneficiaries who have reached or are reaching the limitation on their stay in H-1B nonimmigrant status to request premium processing.

Eligibility Criteria

I-140 Premium Processing, starting March 2, 2009, will be available to beneficiaries who, as of the date of filing the premium processing request:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (which allows beneficiaries to extend H-1B in 3-year increments if I-140 is approved and a visa number is not immediately available); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

Documents Needed by USCIS to Determine Eligibility

USCIS has indicated that certain documents are helpful to determine the premium processing eligibility of a particular  I-140 application:

• Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
• A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,
• A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.

Conclusion

By expanding the premium processing program for I-140s, USCIS effectively expands the window in which the premium processing request may be filed.  Previously,  only holders of valid H-1B status who had 60 days or less remaining on their status were eligible.  Now, under the new rule, premium processing can be filed 60 days before the expiration of H-1B status or after it expires.

The current Processing Times Report for the Nebraska Service Center (NSC) as of September 30, 2008 indicates that NSC is processing I-140 (EB-3) petitions filed on or before August 2, 2007.  However, NSC has indicated that they are still processing cases filed from July 1, 2007 through August 2, 2007, and it will be a couple of months before the cases filed during the 2007 Visa Bulletin “window of opportunity” are fully in process.

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)).

The Texas Service Center (TSC) has introduced a new email procedure that which is available to attorneys who are AILA members and allows the Texas Service Center to identify I-485s and I-140s which have remained pending beyond TSC processing times posted on USCIS’S website.

According to the new procedure, which is effective immediately, I-485s are subject to the new procedure only when an immigrant visa has been made available, according to the State Department Visa Bulletin.   The new procedure allows submission via email of I-485 cases which are subject to review based on the visa numbers.  An automatic system picks up the cases and determines whether they are subject to review.  If they are, it has some mechanism to prioritize them and distribute the case to a case worker.

The procedures are as follows:

EB I-485 Cases

The procedure may be used by AILA-member  attorneys who see that a visa number is available to his or her client according to the Visa Bulletin.  The inquiry can be submitted as soon as the Visa Bulletin is published.

1. Identify all clients on one email whose visa numbers will be available according to the visa bulletin.
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line, write “EB I-485/”MM” (Example:EB I-485/OCT)
4. In the body of the email, provide A numbers only. The system will use these A numbers to pull cases and distribute them to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)
6. If there are multiple family members, type them all on the same line separated by commas (Example: A111222333, A222333444, A444555666)

I-140 Cases

Attorneys who are AILA members can use this procedure when the filing date is prior to the processing time date for the I-140 as published on the USCIS website.

1. Identify all clients on one email whose filing dates are prior to the published timeframe
2. Send an email to streamline.tsc@dhs.gov
3. On the subject line write “I-140″
4. In the body of the email, provide A numbers only. If there is no A number on the receipt, provide the receipt number only.  (For stand-alone I-140s where the beneficiary is out of the U.S. and will be applying for a visa at the consulate).  Do not provide any additional information as the text of the email will be used to automatically check the submitted cases and pull the cases for distribution to floor case workers.
5. If the applicant has more than one A number, type both separated by a “/” (Example: A111222333/A444555666)

Full text of these instructions is available here.

We are AILA members and we will be happy to assist you in moving your case along using the new TSC streamline procedure.  Please contact us.

We wrote earlier today about the pending announcement that USCIS is restoring the possibility of filing I-140 via premium processing.  As we discussed earlier, the premium processing is limited to workers who are nearing the end of their sixth year in H-1B nonimmigrant status.

The premium processing procedure will guarantee 15 calendar-day response by USCIS for a non-refundable fee of $1,000.  To take advantage of the I-140 premium processing, the I-140 petition must be filed on behalf of aliens:

• who are currently in H-1B nonimmigrant visa status;
• whose sixth year will end within 60 days;
• who are only eligible for for a further extension of H-1B nonimmigrant status under section 104(c) of AC21 (permitting 3-year H-1B extensions upon approved I-140); and
• who are ineligible to extend their H-1B status under section 106(a) of AC21 (permitting 1-year H-1B extensions if I-140 or the underlying labor certification is pending for at least 365 days).

Even though the premium procedure is limited in certain cases, it brings welcome relief to a number of H-1B holders who are nearing the limit on their H-1B status.  Please contact us for more information on how you can take advantage of this new rule.

BREAKING NEWS

The USCIS has confirmed that on July June 16, 2008, it will resume premium processing for I-140s in certain limited circumstances. It is expected that these limited circumstances will cover cases where beneficiaries whose H status will expire within 60 days of filing the request and who need I-140 approval to become eligible for the additional H time. This change is intended to address circumstances where an individual needs the approved I-140 to receive additional H time under AC21.

The USCIS has not yet issued an official notice and we will continue to monitor the situation and update as we learn more.

Update: the starting date is June 16, 2008, not July 16, 2008, as we reporter earlier.

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.