Labor Immigration Law» I-290B – Articles

AAO Processing Times Report (July 1, 2010)

admin — Thu, 15 Jul 2010 20:58:59 +0000

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

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 July 1, 2010. Overall, there is not much change in comparison to the April 1, 2010 report (the last we reported).

Among the most notable AAO processing times:

H-1B appeal takes 12 months (decrease by two months compared to April 1, 2010);
I-140 EB1 Extraordinary Ability takes less 7 months (one month increase), Multinational Manager or Executive takes 15 months (increase by three months) while EB1 Outstanding Professor or Researcher category takes 6 months (increase by one month);
I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 6 months (increase by one month); and
I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 23 months on appeal (increase by one month).

Read the full AAO Processing Times report.

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

admin — Mon, 17 May 2010 13:26:53 +0000

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.

AAO Processing Times Report (April 1, 2010)

admin — Tue, 20 Apr 2010 21:17:08 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of April 1, 2010. Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

H-1B appeal takes 14 months (increase by one month compared to March 1, 2010);
I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 5 months (increase by one month);
I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 5 months (increase by one month); and
I-140 EB3 Skilled Worker takes 24 months (no change) while EB3 Other Worker takes 22 months on appeal (no change).

Read the full AAO Processing Times report.

AAO Processing Times Report (March 1, 2010)

admin — Thu, 04 Mar 2010 14:06:44 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of March 1, 2010. Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

H-1B appeal takes 13 months (decrease by one month compared to February 1, 2010);
I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 4 months (decrease by three months);
I-140 EB2 (Advanced Degree) takes 24 months (decrease by one month) while EB2 (NIW) takes 4 months (decrease by three months); and
I-140 EB3 Skilled Worker takes 24 months (increase by one month) while EB3 Other Worker takes 22 months on appeal (increase by one month).

Read the full AAO Processing Times report.

AAO Processing Times Report (February 1, 2010)

admin — Thu, 18 Feb 2010 15:34:05 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of February 1, 2010. Overall, there is not much change in comparison to the January 4, 2010 report.

Among the most notable AAO processing times:

H-1B appeal takes 14 months (increase by one month compared to January 4, 2010);
I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (increase by one month) while EB1 Outstanding Professor or Researcher category takes 7 months (increase by one month);
I-140 EB2 (Advanced Degree) takes 25 months (increase by one month) while EB2 (NIW) takes 7 months (increase by one month); and
I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 21 months on appeal (increase by two months).

Read the full AAO Processing Times report.

AAO Processing Times Report (January 4, 2010)

admin — Thu, 28 Jan 2010 19:06:25 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of January 4, 2010. Overall, there is not much change in comparison to the December 2, 2009 report.

Among the most notable AAO processing times:

H-1B appeal takes 13 months (increase by one compared to December 2, 2009);
I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 11 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 24 months (two months improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.

AAO Processing Times Report (December 2, 2009)

admin — Sat, 02 Jan 2010 14:25:42 +0000

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of December 2, 2009 Overall, we notice delays across all categories.

Among the most notable AAO processing times:

H-1B appeal takes 12 months (one month improvement compared to the November 1, 2009);
I-140 EB1 Extraordinary Ability takes 4 months (one month improvement), Multinational Manager or Executive takes 11 months (increase by one month) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 26 months (one month improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.

AAO Processing Times Report (October 1, 2009)

admin — Fri, 02 Oct 2009 13:04:13 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of October 1, 2009 Overall, we notice delays across all categories.

Among the most notable AAO processing times:

H-1B appeal takes 13 months (decrease from the 16 months processing last reported as of September 1, 2009);
I-140 EB1 Extraordinary Ability takes 5 months (compared with 8 months as of September 1, 2009), Multinational Manager or Executive takes 10 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 27 months (compared to 26 months as of September 1, 2009) while EB2 (NIW) is current (meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 23 months (compared to 22 months as of September 1, 2009) while EB3 Other Worker takes 21 months on appeal (compared to 20 months as of September 1, 2009) on appeal.

Read the full AAO Processing Times report.

AAO Processing Times Report (September 1, 2009)

admin — Wed, 23 Sep 2009 14:00:55 +0000

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 September 1, 2009 Overall, we notice delays across all categories.

Among the most notable AAO processing times:

H-1B appeal takes 16 months (no change from when last reported as of July 28, 2009);
I-140 EB1 Extraordinary Ability takes 8 months (compared with 9 months as of July 28, 2009), Multinational Manager or Executive takes 10 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 26 months (compared to 25 months as of July 28, 2009) while EB2 (NIW) is current (meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 22 months (no change) while EB3 Other Worker takes 20 months on appeal (compared to 19 months as of July 28) on appeal.

Read the full AAO Processing Times report.

AAO Processing Times Report (July 28, 2009)

admin — Thu, 30 Jul 2009 11:51:56 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 28, 2009. Overall, we notice delays across all categories.

Among the most notable AAO processing times:

H-1B appeal takes 16 months (no change from when last reported as of July 1, 2009);
I-140 EB1 Extraordinary Ability takes 9 months (compared with 10 months as of July 1, 2009), Multinational Manager or Executive takes 10 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 25 months (compared to 26 months as of July 1, 2009) while EB2 (NIW) is current (meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 22 months (no change) while EB3 Other Worker takes 19 months on appeal (compared to 18 months as of July 1) on appeal.

Read the full AAO Processing Times report.

AAO Processing Times Report (July 1, 2009)

admin — Thu, 23 Jul 2009 18:19:46 +0000

About the AAO

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2009. Overall, we notice delays across all categories.

Among the most notable AAO processing times:

H-1B appeal takes 16 months (compared to 15 months when last reported in May 2009);
I-140 EB1 Extraordinary Ability takes 10 months (no change), Multinational Manager or Executive takes 10 months (compared to 9 months) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
I-140 EB2 (Advanced Degree) takes 26 months (compared to 24 months in May 2009 and 21 months in March 2009) while EB2 (NIW) is current (meaning less than 6 months); and
I-140 EB3 Skilled Worker takes 22 months (compared to 21 months in May 2009) while EB3 Other Worker takes 18 months (compared to 16 months in May 2009) on appeal.

Read the full AAO Processing Times report.

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

admin — Tue, 07 Jul 2009 16:18:01 +0000

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).

AAO Processing Times Report (May 1, 2009)

admin — Wed, 06 May 2009 13:33:44 +0000

About the AAO

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.

AAO Processing Times Report

admin — Tue, 24 Mar 2009 17:26:55 +0000

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of March 18, 2009.

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.

AAO Procedure Frequently Asked Questions

admin — Thu, 19 Mar 2009 15:25:51 +0000

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries about the procedural aspects of an AAO appeal.

About the AAO

What Happens to USCIS Case When An AAO Appeal is Filed?

When USCIS denies a case, the petitioner or applicant has 30 days within which to appeal the denial decision. The appeal is filed on Form I-290B with the USCIS service center which initially denied the case. The filed I-290B appeal form goes initially to the same officer who initially denied the case. Such officer first reviews his or her decision to determine whether the appeal includes new evidence or other legal basis to overcome the denial. If the denial is overcome, the USCIS service center will make a motion to reopen the case and approve it. Alternatively, if the denial is not overcome, the case is forwarded to the AAO. These procedures are more fully described in the federal regulations. 8 C.F.R. 103(a)(2).

What is The Timing of an AAO Appeal?

Under the regulations, an AAO appeal is timely filed (at the USCIS office which issued the denial decision) if it is received within 30 days of the date of the denial, or 33 days if by mail.

What Happens if AAO Denies the Appeal?

An AAO denial of an I-290B appeal can be challenged in federal district court. An AAO denial decision is considered to have exhausted all administrative remedies, which is a requirement for a federal district court challenge. Challenge in a federal court of an AAO denial is significantly more costly than an AAO appeal, but for some cases it may be the most suitable strategic move.

What are Current AAO Processing Times?

Current AAO processing timelines are released every three to four months. Please follow this link for the latest AAO processing times.

Can I File a Second Petition While My Initial Petition is Pending at AAO?

Many of our clients have inquired as to whether they can refile another USCIS petition while the I-290B appeal of the first petition is pending with AAO. The answer is that a second petition can be filed, but it is USCIS’S policy to hold the second petition in abeyance pending the outcome of the appeal of the first petition. In many cases, to speed up the processing of the second petition, it is best to withdraw the AAO appeal.