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Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India; EB-3 ROW and China to Advance (October 1, 2014)

Our office just came back from a discussion session here in Washington, DC with Charles Oppenheim.  Mr. Oppenheim is the Chief of the Visa Control and Reporting Division at the U.S. Department of State.  For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.   Our access and proximity to Mr. Oppenheim allows us to provide immediate updates on expected Visa Bulletin movements and we are proud to be among the first to report.

We are asked on a daily basis by our clients to provide visa bulletin predictions and when a particular priority date may become current.   As a result, on behalf of our clients, we appreciate the opportunity Mr. Oppenheim has afforded us to get some sense of the movement of the priority dates and also on short- and long-term immigrant visa number trends.

Summary of Mr. Oppenheim’s Key Points

EB-2 India will retrogress significantly in the November or December 2013 Visa Bulletin — going back to early 2005.   EB-3 India will move very slowly in the near term but EB-3 ROW and China  are expected to move forward significantly.

General Visa Number Trends

Mr. Oppenheim spent a few minutes to describe the visa number allocation process and reiterated the fact that in the employment-based context, especially, the demand for visa numbers is greater because of dependents being added — each green card application case is, therefore, “larger” than previously expected and instead of one visa number, if often includes two or three (because many primary beneficiaries have married and have children).  For example, approximately 45% of the visa numbers are used by the primary beneficiaries with the balance of 55% taken up by derivative beneficiaries (spouses and children).   For example, Mr. Oppenheim indicated that in the not-so-distant past, each employment-based India case took 1.4 visa numbers on average while right now, each employment-based India case takes on average 2.5 visa numbers.

As a result, and in recognition of the additional fact that many EB-3 India and China candidates are now eligible for porting and are now applying under the EB-2 category, Mr. Oppenheim noted that the EB-3, in addition to EB-2 visa numbers, are expected to remain oversubscribed, particularly for Indian nationals.

He also indicated that there is a significant number of EB-3 to EB-2 India porting cases and the mechanics of the EB-3 to EB-2 porting does not allow advance notification to the Department of State’s Visa Office.   This causes a significant number of EB-3 to EB-2 porting cases to “appear” without advance warning to the Visa Office and, as a result, the Visa Office has to hold cutoff dates back to accommodate such porting case.   Additionally, Mr. Oppenheim shared that in addition to EB-3 to EB-2 porting cases for Indian nationals, who are the majority of such cases, he sees an increasing number of EB-3 to EB-2 porting cases from nationals of other countries under the “Rest of World” (ROW) category.

Unfortunately, today’s comments by Mr. Oppenheim do not bring much good news, especially for EB-2 India.   Because of the significant number of EB-2 India filings early this year and because of the very high number of EB-3 to EB-2 porting cases, Mr. Oppenheim indicated that EB-2 India will retrogress significantly (to early 2005) in either the upcoming November Visa Bulletin or in the following December Visa Bulletin.   EB-2 India is then expected to remain at early 2005 for a significant time – no forward movement is expected until June 2015 or so.

Mr. Oppenheim suggested that the EB-1 and EB-5 categories are relatively “popular” this year and expects more numbers to be used in these categories, compared to the past years.   He cited EB-5, and specifically EB-5 China, category where demand has been growing steadily and where, for the first time ever, all EB-5 visa numbers have been used.   This high demand also means that there will be less “leftover” visa numbers available to allocate to other categories, such as EB-2 India and China which would further contribute to the slow EB-2 India forward movement.

On a more general level, Mr. Oppenheim shared that his goal is to advance the cutoff dates more at the beginning of the fiscal year (October, November and December, and January visa bulletins) and then, as he is able to gauge demand for a particular preference category, adjust accordingly by either slowing down or retrogressing (if demand is high) or advancing even more (is demand turns out to be low).

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year.

EB-2 China.  This category is expected to continue to move forward by approximately 3-5 weeks per month in each Visa Bulletin.

EB-2 India.  This is the major headline from our meeting with Mr. Oppenheim –  EB-2 India is expected to retrogress significantly – by several years back to early 2005 as early as the next Visa Bulletin.     It is expected that EB-2 India will remain at that level (early 2005) until the summer of 2015.    The rationale behind this severe retrogression in EB-2 India is that there is simply too much “demand” (number of pending cases caused by I-485 filings and EB-3 to EB-2 porting cases, plus adding dependents) in this category and the Visa Office has to stop the rate of new filings until USCIS and DOS are able to approve the pending cases and “clear the demand.”

EB-3 Rest of World (ROW).  This category is expected to move forward significantly over the next months to stimulate “demand” for the following several months.

EB-3 China.  Rapid forward movement is expected – perhaps advancing to late 2009 or early 2010 over the next few months.

EB-3 India.  Unfortunately, this category continues to be oversubscribed and there is very little or no forward movement expected in the next months.   Forward movement of 1-2 weeks per month should be the normal.      The simple reason is that there are many EB-3 India cases which are waiting a visa number – there are 25,000-30,000 preadjudicated EB-3 India cases with a priority date before July 2007 waiting for a visa number.    With annual limit for this category of about 2,800, it would take a long time to clear this backlog and be able to advance the priority date beyond July 2007.

However, as a positive sign, as many EB-3 India applicants are porting into EB-2, there is some possibility that some EB-3 visa numbers may be “freed” simply because some EB-3 candidates will drop out of the EB-3 demand line after receiving a green card under a newly ported EB-2 category.

EB-5.   Mr. Oppenheim suggested that the demand for EB-5 is at the highest level ever.    For the next fiscal year EB-5 is expected to be current for everyone except EB-5 China (which takes about 85% of all EB-5 immigrant visas).    It is possible to introduce an EB-5 cutoff date for China which may mean one or two year wait for a visa number (including issues relating to minor dependents aging out).

On Predicting the Visa Bulletin Cutoff Dates

Mr. Oppenheim shared his thoughts on the ability  of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the retrogression of EB-2 India in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down or retrogress EB-2 India to be able to accommodate EB-2 India applicants with early  priority dates.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  We understand, as Mr. Oppenheim does, that his comments and predictions are going to cause significant disappointment in EB-2 and EB-2 India applicants, specifically.     Our EB-2 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.    Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Happy New (Fiscal) Year – Immigration Implications of the New Government Fiscal Year

While few, if any, of our clients and readers will be planning major celebrations, October 1st is an important date as it marks the beginning of the new government fiscal year.     This has some immigration implications for many folks — for example, H-1B cap petitions are becoming effective and the quotas for green card visa numbers are being reset for the new fiscal year.

Approved H-1B Cap Petitions (and Change of Status) Becoming Effective

October 1st is the earliest starting date for an H-1B petition filed in April under the annual cap.     As a result, almost all H-1B cap petitions have a starting date of October 1.

Notes for H-1B Employers.   Employers who have sponsored H-1B cap cases and have received approvals with change of status can now employ their workers on H-1B status.      In fact, such H-1B employers must provide employment to H-1B beneficiaries whose status was changed to H-1B on October 1st — not offering employment and pay may cause issues due to possible benching without pay claims.

If the H-1B cap petition was approved on the basis of “consular processing” (no I-94 card issued as part of the approval), then H-1B employers will need to have their workers either (a) obtain H-1B visa stamp at a US Consulate abroad and travel to the U.S. on H-1B status or, if the worker is in the US, (b) file for a change of status to H-1B  from within the U.S. and wait for an approval before H-1B employment can legally start.

Notes for H-1B Workers.   Workers who have received H-1B cap approval with change of status (I-94 card attached to the bottom of H-1B approval notice) should understand that on October 1 their status in the U.S. would automatically change to H-1B and they would be expected to start (or continue) working for the H-1B employer to maintain valid status.     In certain situations, for example holders of L-1 or L-2 status, or if the worker is not ready to start employment, the fact that the status would change automatically to H-1B on October 1 is a significant problem.   For example, L-1 holders will have to stop working for their L-1 employer and start working for their H-1B employer.        Our office can help analyze this situation and provide solutions or suggestions – a phone consultation is a quick and effective way to do so.

As noted above in the employer’s section, if the H-1B cap petition was approved with “consular processing” (no I-94 card), then the H-1B worker will either need to enter the U.S. using H-1B visa or apply to change status from within the U.S.

Annual Visa Number Quotes Reset – Green Card Approvals to Continue

Another important aspect of the new government fiscal year starting on October 1st is the fact that the annual green card visa numbers will reset.    At this time this is most important to EB-2 India green card applicants who were affected by the visa unavailability announcement earlier in September.    As of October 1, we expect USCIS to continue to issue approvals of pending I-485 cases for EB-2 India nationals with current priority dates (but note the anticipated major EB-2 India cutoff date retrogression later in the fall).

Green card applicants in the remaining green card categories – both family- and employment-based -should not see much difference because of October 1st.   Generally, the beginning of a new fiscal year allows the government to allocate a new set of visa numbers for the entire fiscal year but depending on the demand and the pending applications for each category, the government makes different decisions as to how to allocate these numbers and how to advance or retrogress the cutoff dates.

Conclusion

The new government fiscal year has some possible (and sometimes important) implications to many H-1B employers and workers, in addition to a significant number of EB-2 India applicants.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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DV-2016 Diversity Visa (Green Card) Lottery Opens October 1, 2014

The Department of State will open the DV-2015 Diversity Visa (a.k.a. “green card”) lottery on Tuesday, October 1, 2014.   The entries for this year’s lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 1, 2014, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 3,  2014.

Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EDT on November 3, 2014.

About the DV Lottery

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. A computer-generated, random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.

Countries Ineligible

For DV-2016, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligibility Requirements

There are two main requirements.  First, the applicant must be a national of a country which is eligible (see above for ineligible countries).  Nationality is generally defined by birth, although there are certain exceptions,  most notably if the applicant’s spouse is a national of a different country.  Second, the applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Same-Sex Spouses

Following the Defense of Marriage Act (“DOMA”) decision last this year, USCIS and the Department of State now recognize and extend DV eligibility to lawfully married same-sex couples.    Diversity Visa applicants may include same-sex spouses in their initial entries or add spouses acquired after their initial registration.

Details about Submitting Lottery Entries

Please refer to the official document issued by the Department of State on how to submit a lottery entry.

Results Announced in May 2015

The results of the lottery will be posted on the designated status check website around May 5, 2015.   All DV-2016 entrants will be required to go to the Entrant Status Check website using the unique confirmation number saved from their DV-2016 online entry registration to find out whether their entry has been selected in the DV program.

Conclusion

We urge those who are considering applying for this year’s Diversity Visa lottery to read the instructions carefully and to submit their electronic entries early during the submission window.    We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments.

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SB-1 Returning Resident – What to Do When a Green Card is Abandoned?

Many U.S. lawful permanent residents (“green card holders”) who have to or choose to reside abroad are (or should be) aware that there are rules and restrictions on the time they can be outside of the U.S. and maintain their green card status.   Specifically, a stay outside of the U.S. of more than one year at a time without a reentry permit would cause automatic abandonment of one’s green card.   If this happens, there is still a procedure and a chance to seek to have the green card reinstated – this is the SB-1 Returning Resident application process.

Green Card Abandonment Rules

A green card holder who does not have a valid reentry permit and who has spent more than one year outside of the U.S. will not be allowed to enter the U.S.   8 CFR § 211.1(a).     In this case, the green card is considered to have been abandoned and the green card holder will require a new immigrant visa (if they are eligible to obtain one again by initiating a brand new green card process) to enter the U.S.      Alternatively,  the returning resident special immigrant visa allows green card holders who have remained outside of the U.S. due to circumstances beyond their  control to apply for reinstatement of the abandoned green card.

SB-1 Returning Resident Application Procedure

If the SB-1 Returning Resident application is approved,  this eliminates the requirement that a new green card petition be filed.    AS part of the SB-1 application process the green card holder will need to be interviewed for both the SB-1 application for returning resident status and usually later for the actual immigrant visa.   An SB-1 applicant is required to establish eligibility for an immigrant visa and have a medical examination.   There are visa processing fees and medical fees (plus attorney fees, if an attorney is involved).

Step 1.  Evaluate SB-1 Returning Resident Application.   The first step in the process is to evaluate and confirm that such an application is in fact required and what is the best way to approach the application in terms of presenting evidence to show that the extended stay outside of the U.S. has been due to extraordinary circumstances outside of the applicant’s control.   Evaluating and gathering documentation to demonstrate this is very important.

Step 2.  Prepare and File Application with U.S. Consulate.   The application, form plus application fees and supporting documents, is prepared and filed with a U.S. Consulate at least several months before the anticipated travel back to the U.S.    The Consulate will require an interview as part of the application process and the interview is likely going to focus on the reasons and circumstances causing the applicant to remain for more than one year outside of the U.S.

Step 3.   DS-260 and Medical Exam.   If the SB-1 application is approved, the Consulate will ask that the applicant submit a DS-260 form (used for immigrant visa applications), together with applicable fees and medical/vaccination records.    This step will ultimately result in the Consulate issuing and placing in the applicant’s passport anew I-551 (green card) stamp which would allow travel back to the U.S.

SB-1 Returning Resident Application Denial

If the SB-1 application is denied on the grounds that the applicant has abandoned or relinquished their residence in the U.S.,  the applicant may consider applying from the beginning for another green card (if they are still eligible) or they maybe able to file an application for a nonimmigrant visa (H-1B, B-1/B-2, etc.).

Factors for Successful Returning Resident Application

The key determination in an SB-1 Returning Resident application is whether the applicant was unable to travel to the U.S. due to extraordinary circumstances beyond his or her control.     The applicant for SB-1 Returning Resident Status must show:

  • That they were a lawful permanent resident when they last departed the U.S.,
  • That when they departed they intended to return to the U.S. and have maintained this intent throughout the period of stay outside of the U.S.,
  • That they are returning from a temporary visit abroad and that the extended stay was caused by reasons beyond their control and for which they were not responsible, and
  • That they are eligible for the immigrant visa in all other respects (such as criminal, health, etc. reasons).

In most SB-1 applications the main focus is on the reasons for remaining outside of the U.S. for extended period of time and how these reasons were outside of the applicant’s control.   A successful SB-1 application should be able to convince (an often skeptical consular officer) of the special circumstances by clear evidence.

Traveling Without SB-1 Approval?   Abandonment Can Occur Even After Travel to the U.S.

There are many green card holders who, intentionally or not, travel to the U.S. using their green card after having spent more than one year outside of the U.S. and without applying for SB-1 Returning Resident visa.    During U.S. Customs and Border Protection (CBP) inspection at the port of entry, some green card holders are confronted about their stay outside of the U.S. and many are placed in removal proceedings due to abandonment.

On the other hand, many people are admitted at the port of entry as green card holders without any further action at the port of entry.   However, an admission as a green card holder does not “fix” the abandonment issue.   It is possible, years after the fact, for the U.S. government to make a determination that the green card had been abandoned and to place the applicant in removal proceedings at that time.

When there has been stay outside of the U.S. and possible abandonment, we do not recommend traveling to the U.S. without first obtaining an SB-1 Returning Resident visa (perhaps after consulting an attorney to evaluate the situation in detail).

Conclusion

As described in this article, a green card abandoned by spending an extended period of time outside of the U.S.  is very difficult (and costly) to reinstate.   Our office always recommends erring on the side of caution and obtaining a reentry permit when there is possibility that a trip outside of the U.S. may take more than one year or if there will be a pattern of spending extended period of time abroad.     For those green card holders who are facing abandonment of their green card we would recommend carefully evaluating the type of excuses (and the supporting documents) which can allow an SB-1 Returning Resident application to be approved.

Our office has developed expertise in handling reentry permits and SB-1 Returning Resident applications in a variety of situations and we will be happy to analyze a particular situation and provide options.   Please give us some details for a free attorney reentry permit case review and options or feel free to contact us with any other questions or concerns.

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Current PERM Processing Times (September 8, 2014)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of September 8, 2014.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around four to five months.     The processing time of PERM applications in audit remains unchanged compared to our prior report from a month ago.

The processing times, as reported by DOL, are as follows:

  • Regular processing: April 2014.  DOL is processing PERM applications with priority dates of April 2014.  There is no change in the expected duration of a PERM case compared to the August 2014 report.    Accordingly, regular PERM processing times should be around four to five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    We hope that this continues the trend of (slight) improvement in the processing time for PERM cases.
  • Audited applications: March 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of March 2013.  This is a delay of about a month compared to last month’s report.    Accordingly, audited PERM applications are processed approximately 18-19 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): September 2014.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in September 2014.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The September 2014 PERM processing times report shows that the PERM processing times show no change in the processing times compared to a month ago with some delays in the processing times for audited PERM applications.    Over the past several months, we have observed continuing decrease (improvement) in the regular PERM processing times and on behalf of our clients, we are hopeful that this improvement trend would continue.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Breaking News: EB-2 India Unavailable for Rest of September; Major Retrogression in EB-2 India Coming in the Fall

Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, just announced in a meeting in which our office participated that due to extraordinarily high volume of EB-2 India cases, the Department of State will make the EB-2 India category unavailable until the end of the fiscal year (September 30, 2014) effective immediately as of today, September 10, 2014.  It is important to note that this announcement does not affect the October 2014 Visa Bulletin, which has EB-2 India with a cutoff date of May 1, 2009 and which will be effective as of October 1, 2014.

Making a category unavailable is an emergency measure and is caused, in this instance, by the high volume of EB-2 India filings (and approvals), combined with the fact that the available visa numbers for the fiscal year have been or will be reached immediately.   While it is not unusual for the available visa numbers for a fiscal year to be reached at some time in September (because the fiscal year ends at the end of September and because the Department of State is trying to make sure that all visa numbers are used before the end of the fiscal year or be lost),  making a visa category unavailable with an immediate effect is a rare move.

No or Few EB-2 India Approvals Expected for the Rest of September

The fact that the EB-2 India has been made “unavailable” and that there are no more visa numbers available in this category means that we should not expect any further EB-2 India approvals in September.      There may be few approvals, nonetheless.  The reason is that an immigration officer may have already requested and received an authorization for a visa number for a pending I-485 case and as long as this visa number has been already allocated, an approval of an I-485 application may come even after this announcement.

When the new fiscal year starts on October 1, the annual visa numbers reset and we should continue to see adjudications and approvals for pending I-485 applications with current priority dates.

No EB-2 India Filings for the Remainder of September

The fact that EB-2 India is unavailable for September also means that no new EB-2 India I-485 filings will be accepted and processed during the rest of the month.    This includes I-485 filings for dependents and I-485 interfiling requests (usually after I-140 porting applications).   Cases that are filed are either likely to be held for processing on October 1st or will be returned to the applicant.

Update 9/11/2014.  Based on recent experience when DOS made EB-5 China “unavailable”,  USCIS is likely to continue accepting I-485 filings but those cases will be held in the Visa Office’s “Pending Demand” file until October 1, 2014.   At that time, all eligible cases will be automatically authorized from the “Pending Demand” file under the FY-2015 annual numerical limitation.

EB-2 India Major Retrogression Upcoming

Mr. Oppenheim also confirmed that a major retrogression for EB-2 India is expected in November or December.    According to Mr. Oppenheim, EB-2 India is likely to retrogress possibly all the way back to 2005.   On a longer term note, EB-2 India is likely to move forward extremely slowly and EB-2 India candidates should prepare for a long wait under the current visa allocation system and given the current high levels of demand.

Conclusion

The folks most affected by this breaking announcement will be EB-2 India applicants who were planning to file their (or their family members’) I-485 applications in the month of September.   These candidates may now have to wait until still be able to file their I-485 applications but such applications may be held until October 1st.    Also, EB-2 India applicants with pending I-485 applications and a current priority date will likely have to wait until October 1st, at least, to get some good news.

We will provide updates on this piece of breaking news and related topics.    Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Overview of Reentry Permit Extensions and Validity Terms

Our office serves many first-time and returning reentry permit applicants and one of the most frequently asked questions or concerns related to the ability to extend a reentry permit after its initial term (of often two years) and about the validity of subsequent renewal reentry permit documents.    The good news is that there is no limit on how many times a reentry permit can be renewed but there are rules and restrictions on the validity of reentry permit renewal documents.

Unlimited Reentry Permit Renewals Are Permitted

There is no restriction on how many times a reentry permit can be renewed.    In theory, and subject to renewal term limits and renewal frequencies described below, a green card holder can apply for and obtain an unlimited number of reentry permits, thus extending their stay abroad for a number of years while preserving their green card status.

Even though a green card holder is eligible to apply for a renewal reentry permit for a number of times, each individual application is reviewed separately, on its own merits, and a prior reentry permit approval does not guarantee subsequent reentry permit renewal approvals.     However, as long as the application requirements are met and the application is properly prepared and filed and as long as the applicant submits to the required biometrics, chances of approval of a reentry permit application are good.

Reentry Permit Validity – 1-Year vs. 2-Year Terms

While the reentry permit may be renewed for a number of times, without limit, there are certain limits on the terms of renewal reentry permits.    For most reentry permit holders, their first, second and perhaps even third reentry permits will be valid for two years.   However, subsequent reentry permits may be valid for one year only.    The government has put in place regulations which restrict the validity of a reentry permit depending on how much time the applicant green card holder has spent outside of the US.    The effect of these regulations are to make it harder (and more expensive) for green card holders to remain outside of the US for more than a few years.

Here are the rules.   If a green card holder has spent more than four years total outside of the US since becoming a green card holder (or during the last five years, whichever is less), then the reentry permit will be issued with 1-year validity term.     Otherwise, for folks who have spent outside of the US less than four years, the reentry permit validity term will be the default of two years.

There are some very limited exceptions.  If the green card holder is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit may be issued for two (2) years despite extended periods of absence from the US.

As a result of this rule, and with a little bit of proper application planning, many green card holders are able to get their first two to three reentry permits with a 2-year validity.   Green card holders who wish to reside outside of the US for a number of years can still do so and retain their green cards, but they will need to renew their reentry permits every year, after the first four, and each reentry permit renewal becomes an annual filing expense plus a required trip to the U.S. (or Guam, for some) for biometrics.

Conclusion

Contrary to some Internet myths and stories, there are no limits on how many times a reentry permit can be renewed.   However, there are validity term restrictions on reentry permits after spending four years or more abroad so proper planning for renewals is essential.    For green card holders who do not mind the cost and the inconvenience to apply and travel to the US for biometrics every year, it may be possible to remain abroad for a substantial period of time and still keep one’s green card status.

Our office has developed expertise in handling reentry permit in a variety of situations, including multiple renewals, and we will be happy to analyze a particular situation and provide options.   Please give us some details for a free attorney reentry permit case review and options or feel free to contact us with any other questions or concerns.

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October 2014 Visa Bulletin – EB-2 India Unchanged with Imminent Retrogression

The U.S. State Department has just released the October 2014 Visa Bulletin which is the first Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement in EB-2 and the expectation of an imminent retrogression in this category.    EB-3 advances nicely for everyone except EB-3 India.   FB-2A also advances slightly.

Summary of the October 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the October 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged at May 1, 2009.  EB-2 China moves forward by five (5) weeks to November 15, 2009.
  • EB-3 ROW, Mexico and Philippines advance by six (6) months to October 1, 2011.   EB-3 China advances by five (5) moths to April 1, 2009 while EB-3 India  advances by only one (1) week to November 15, 2003.
  • The “other worker” categories for ROW, Mexico and Philippines advance by six (6) months to October 1, 2011.   EB-3 China remains unchanged at July 22, 2005 while EB-3 India  advances by only one (1) week to November 15, 2003.

Summary of the October 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the October 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by three (3) weeks to May 22, 2007.   FB-1 Mexico moves forward by three (3) weeks to June 22, 1994 and FB-1 Philippines moves forward by one (1) month to September 1, 2004.
  • FB-2A moves forward again (after a period of retrogression and no movement) – it moves forward significantly by one (1) month to February 1, 2013 for ROW, China, India and Philippines.  It also moves forward by three (3) months to July 22, 2012 for Mexico.

EB-2 India No Change This Month; Retrogression Coming in November

After the significant forward movement over the past few months in EB-2 India, this month’s Visa Bulletin suggests that the trends is about to reverse.    The fact that there is no movement in EB-2 India, combined with the Visa Bulletin note that a retrogression in this category is imminent confirms 0ur expectation that the high rate of recent I-485 filings and I-485 approvals are creating sufficient demand in EB-2 India to force the Department of State to move the cutoff dates backwards.

Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).

There are still many EB-2 India applicants who are current as of September and October 2014 and who have not filed (or interfiled) their or their dependents’ I-485 applications.   We urge all of these applicants to consider filing I-485 over the next few months and before the expected retrogression in EB-2 India.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the October 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the October 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Certain US Consular Visa Processing Fees to Change September 12, 2014

Effective September 12, 2014, the Department of State is changing the visa processing fees.   Some of the fees will increase, while some will decrease.  For example, the fees for K nonimmigrant visa applications will increase.  On the other hand, most immigrant visa processing fees will decrease (some by a substantial amount).

Nonimmigrant Visas

The Department of State is required to recover, as must as possible, the cost of processing a visa application and a stamp through the collection of application fees.  According to the Department of State, for a number of reasons, the current fees for certain types of visas no longer cover the actual cost of processing nonimmigrant visas. As a result, the nonimmigrant visa fee increase will support the addition and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand.

Although most categories of nonimmigrant visa processing fees will remain unchanged, the fee for E visas (treaty-traders and treaty-investors) will decrease while the fee for K visas (for fiancé(e)s of U.S. citizens) will increase.

Type of Visa Previous Fee New Fee
Treaty Investor and Trader visas (E) $270 $205 ()
Fiancé(e) visas (K) $240 $265 ()
Border Crossing Cards (under age 15) $15 $16 ()

Immigrant Visas

Because of a reallocation of costs associated with immigrant visas, some categories of immigrant visa processing fees will also change as shown below.

Type of Visa Previous Fee New Fee
Immediate Relative and Family Preference Applications $230 $325 ()
Employment-Based Applications $405 $345 ()
Other Immigrant Visa Applications $220 $205 ()
Affidavit of support $440 $330 ()
Determining Returning Resident Status $275 $180 ()

Full Schedule of Consular Fees

For the full and up-to-date schedule of consular application fees, please refer to the Department of State schedule of fees.

Conclusion

We welcome the Department of State’s efforts to make its services more affordable and for its fees to reflect the actual cost of services provided.    It should be noted that for fees paid before September 12, 2014 but when the interview is after September 12, 2014, the Consulate will seek the applicant to pay the difference if the fee has increased.   The Department of State will not issue refunds for fees already paid which are expected to decrease after September 12, 2014.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.  If our office can be of any help, please feel free to contact us.

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September 2014 Visa Bulletin – EB-2 India Again Moves Forward by Four Months; EB-3 Philippines and FB-2A Also Advance Significantly

The U.S. State Department has just released the September 2014 Visa Bulletin which is the twelfth and last Visa Bulletin for the FY2014 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued notable forward movement in EB-2 India and EB-3 Philippines and the lack of movement in any of the other EB categories.   Also, very notable is the significant (and long overdue) forward movement in the FB-2A category.

Summary of the September 2014 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2014 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India advances by over three (3) months to May 1, 2009.  EB-2 remains unchanged at October 8, 2009.
  • EB-3 ROW and Mexico remain unchanged (again) at April 1, 2011.  EB-3 China remains unchanged at November 1, 2008 while EB-3 India  remains unchanged at November 8, 2003.   EB-3 Philippines advances by ten (10) months to April 1, 2011.
  • The “other worker” categories for ROW and Mexico remain unchanged at April 1, 2011.  EB-3 China remains unchanged at July 22, 2005 while EB-3 India  remains unchanged at November 8, 2003.  EB-3 Philippines advances by ten (10) months to April 1, 2011.

Summary of the September 2014 Visa Bulletin – Family-Based (FB)

Below is a summary of the September 2014 Visa Bulletin with respect to family-based categories:

  • FB-1 ROW, China and India all move forward by one (1) week to May 1, 2007.   FB-1 Mexico moves forward by almost two (2) months to June 1, 1994 and FB-1 Philippines moves forward by two (2) months to August 1, 2004.
  • FB-2A finally moves forward (after a period of retrogression and no movement) – it moves forward significantly by eight (8) months to January 1, 2013 for ROW, China, India and Philippines.  It also moves forward by over one (1) year to April 22, 2012 for Mexico.

EB-2 India Another Significant Forward Movement

After the significant forward movement over the last couple of months in EB-2 India, this month’s Visa Bulletin brings another welcome (and somewhat expected) piece of news for EB-2 India applicants.     Even though this month’s movement is of about four months, to May 1, 2009, it still allows many EB-2 India applicants to file their I-485 applications.     Over the past few months there has been increasing buildup in the amount of applications waiting for a movement in the EB-2 India category and our office had expected some movement to occur towards the end of the fiscal year.     Our office has been increasingly busy with new I-485 filings (for those who are becoming current this or next month) or for handling I-485 requests for evidence (for those who had pending I-485 applications but had expired medicals).   The four-year forward movement in EB-2 India, followed by two four-month forward movements, is done by the U.S. Department of State to allow the government to process a number of pending I-485 applications in order to utilize all of the available visa numbers for the fiscal year (to end on September 30).    We see a number of approvals and expect more approvals on many I-485 cases (which have cleared their RFEs, for some, due to medical exam expiration).

Since many EB-2 India applicants have also ported their EB-3 priority date into EB-2, there will be a significant number of EB-2 India nationals who would have their newly-ported EB-2 priority date become current and who would be eligible to file I-485 adjustment of status applications (together with eligible family members).

In a note found in the Visa Bulletin, the Department of State warns that heavy demand (number of filings) in EB-2 India may cause this (and other) category to reach its annual limit sometime in September – when this happens, the government (USCIS and DOS) will stop approving immigrant visas and a correction in the Visa Bulletin midway through the month may be possible.    The September Visa Bulletin cautions that a retrogression in EB-2 India is likely as early as in the November Visa Bulletin.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the September 2014 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.      Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the September 2014 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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