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 November 6, 2013. We should note that this processing times report is the first to be released after the 16-day government shutdown in October 2013 so the processing times are affected by DOL being closed for close to three weeks.
Current PERM Processing Times
Most notable, again, is the additional delay in the processing time for regular PERM applications — to approximately six months. The processing times, as reported by DOL, are as follows:
- Regular processing: March 2013. DOL is processing PERM applications with priority dates of March 2013. Accordingly, regular PERM processing times should be around seven to eight months. Our office has experienced PERM approvals consistent with this timeline and we can confirm it. The additional one- month increase in the processing times (compared to the last September 2013 report) would be disappointing news to many PERM applicants; however, we are hopeful that DOL would be able to catch up and work on decreasing this metric.
- Audited applications: September 2012. DOL is processing PERM audits which have a priority date of September 2012. This processing time has increased by a month or so compared to our last report as of September 5, 2013. Accordingly, audited PERM applications are processed approximately 14 months after the initial PERM was filed and the priority date established.
- Appealed applications (requests for reconsideration to the Certifying Officer): November 2013. DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in November 2013. There is no change in this category, compared to our last report, after there was a notable improvement in this category. 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.
The November 2013 PERM processing times report shows slight (1-2 months) increase in the regular PERM processing times and a one-month increase in the PERM audit processing times. We have been seeing continuing increase in the regular PERM processing times and on behalf of our clients, we are hopeful that DOL would be able to bring down the regular PERM processing times especially since several months ago they were as short as two months. We also believe that this month’s report was affected by the government shutdown.
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.No comments
December 2013 Visa Bulletin – EB-2 India Major Retrogression; EB-3 ROW Moves Forward by a Year; No Movement for FB-2A
The U.S. State Department has just released the December 2013 Visa Bulletin which is the third Visa Bulletin for the FY2014 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the major (over 3.5 years) retrogression in EB-2 India, the significant (1 year) forward movement for EB-3 ROW and the fact that FB-2A remains unchanged with a (relatively) recent cutoff date.
Summary of the December 2013 Visa Bulletin – Employment-Based (EB)
Below is a summary of the December 2013 Visa Bulletin with respect to employment-based petitions:
- EB-1 remains current across the board.
- EB-2 for ROW, Mexico and Philippines are all current. EB-2 India retrogresses, as we anticipated, by three years and seven months to November 15, 2004. EB-2 China moves forward by one (1) month to November 8, 2008.
- EB-3 ROW, China and Mexico move forward by one (1) year (not a typo!) to October 1, 2011. EB-3 Philippines moves forward by three (3) weeks to January 8, 2007, while EB-3 India retrogresses by three (3) weeks back to September 1, 2003.
- The “other worker” moves forward by one (1) year to October 1, 2011 for ROW, China and Mexico. It moves forward by three (3) weeks to January 7, 2007 for Philippines and retrogresses by three (3) weeks back to September 1, 2003 for India.
Summary of the December 2013 Visa Bulletin – Family-Based (FB)
Below is a summary of the December 2013 Visa Bulletin with respect to family-based petitions:
- FB-1 continues to move forward, although slowly. FB-1 ROW, China and India all move forward by three (3) weeks to November 15, 2006. FB-1 Mexico remains unchanged at September 22, 1993 and FB-1 Philippines also remains unchanged at July 1, 2001.
- FB-2A remains unchanged (again) for all nationalities. All categories (FB-2A ROW, China, India, Mexico and Philippines) continue to have a cutoff date of September 8, 2013.
- FB-2B ROW, China and India all move forward by five (5) weeks to May 1, 2006. FB-2B Mexico remains unchanged at April 1, 1994 while FB-2B Philippines moves forward by three (3) weeks to March 22, 2003.
Not Good News for EB India: Major Retrogression Hits EB-2 India; EB-3 India Also Moves Back
A couple of weeks ago, our office shared in detail our expectations that there would be a major retrogression in EB-2 India. The December 2013 Visa Bulletin shows that our expectations were absolutely correct even though many of our EB India clients and readers would be disappointed by this news. We expect that EB-2 India would remain severely retrogressed for at least several months (perhaps until Summer 2014). 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 ROW Moves Forward Significantly By One Year
In contrast to EB India, we note that EB-3 ROW moves forward very significantly – by one year from October 2010 to October 1, 2011. This is a very significant movement and would help many EB-3 ROW applicants who are waiting for a visa number to either file their I-485 adjustment of status applications or process their immigrant visa at the U.S. Consulate abroad.
FB-2A Remains Unchanged
Another notable development (or lack thereof) is the fact that FB-2A cutoff date remains unchanged, after the introduction of a cutoff date in the October 2013 Visa Bulletin. We expected the October 2013 FB-2A cutoff date to be introduced and the fact that it remains unchanged is not surprising since it appears that USCIS and the Department of State have seen increased number of filings in this category.
Visa Bulletin Predictions – Employment-Based
The December 2013 Visa Bulletin also provides a general estimate on the movement of the cutoff dates over the next months.
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; however, depending on demand, a cutoff date towards the end of the fiscal year may be introduced.
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. No forward movement.
EB-3 Rest of World (ROW). After this month’s significant forward movement, it is possible to see certain additional forward movement to stimulate “demand” for the next several months. Afterwards, the movement may stop or even retrogress. There should be any forward movement beyond February.
EB-3 China. Expected to track the worldwide (ROW) date.
EB-3 India. No forward movement expected.
EB-3 Philippines. Expected to keep moving forward by three to six weeks per month.
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 December 2013 Visa Bulletin (EB-3 ROW, specifically) 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 significant forward movement in the cutoff dates. 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 December 2013 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.No comments
A recent article for Yahoo Finance entitled, Can a Bad Debt Get You Deported? discusses the implications of bad credit or unpaid bills to the immigration process. Founder and principal attorney Dimo Michailov was consulted for article and quoted throughout the article.
“Normally, the United States does not look at credit” when considering visa applications, says Washington D.C.-based immigration attorney Dimo Michailov.
If a bad debt winds up in the court system, it is usually a civil proceeding that does not have to be disclosed. If criminal activity were involved, it would be a different matter, he says. As a general rule, though, being unable to pay your debts is not a criminal matter.
Full article at Yahoo Finance.
Our office remains actively engaged with the media and we are often consulted and cited (with our without attribution) by various news organizations. If our office can help with any (time-sensitive or otherwise) media inquiries, please contact us at email@example.com.No comments
USCIS has circulated a proposed draft of a redesigned and revised Form I-129 and has opened a public comment period on the proposed changes. The new form features a new design layout where most of the questions are the same but laid out slightly differently. There are some changes to the wording of some questions, but there are also some notable substantive changes on the form which may impact a number of I-129 filers. Specifically, one of the substantive changes on the form may impact notably beneficiaries who have certain ownership interest in the sponsoring employer.
Overview of Proposed Substantive Form I-129 Changes
Ownership Interest. The form now asks whether the beneficiary has any ownership interest in the petitioning employer and if the answer is “Yes,” the form asks for details of the beneficiary’s ownership interest. This is a new field and we believe it was added to allow USCIS to test the “employer-employee relationship” for many employers where the beneficiary has some ownership interest. This can be a significant issue for startups and entrepreneurs who have secured H-1B visa (for example) to allow them to work for their own company. Our office has dealt with this issue on numerous occasions and we see continued headwinds for entrepreneurs to obtain H-1B petition approval when the entrepreneur is a significant owner of the employer. Our office also has an upcoming webinar on entrepreneurs and H-1B.
Attorney Attestation. The form expands the attorney attestation section with respect to the accuracy and the quality of the information submitted on the form.
The public comment period ends on November 25, 2013 so we encourage anyone who wants to comment on the proposed Form I-129 revision to do so. We would continue monitoring this subject and provide updates to our clients and readers. Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments
Anyone who has ever filed a petition of some sort with USCIS has wondered, “How long would I have to wait to get a response from USCIS on my application?” Chances are that such an applicant has used the online status check and has also checked the “normal” processing times for the type of a case they have had filed. Many of our clients and readers are well aware of these two resources and we encourage following the information posted on the USCIS website. However, we often receive questions by clients on how to interpret the processing times posted on the USCIS website and whether these reports are actually reliable. We seek to provide a little bit of information on how these government processing times reports are compiled, how to interpret them and whether they are reliable at all.
Recent Issues with Inaccurate Processing Times Reports
Over the past few months, we have seen an increasing number of cases for which the processing times reports do not reflect accurate case status. In other words, the processing times reports have been inaccurate, in some cases, substantially so. For example, when USCIS processing times indicated that H-1B cases are processed within 3 months, our office had a number of pending cases which had been pending well above this time period.
USCIS has addressed some of these concerns and have taken steps to correct the way the processing times are gathered and reported to ensure higher quality data. In the past, internal investigations by USCIS have revealed that some of the processing times are simply being reported incorrectly. For example, the Texas Service Center had inadvertently been processing cases out of their receipt order, thereby deviating from their standard first-in/first-out policy. We were assured that this deviation has been corrected.
How Are Processing Times Determined?
The USCIS calculated processing times are intended to be a reflection of the number of months of application/petition receipts that an office’s inventory of pending cases represents. For example, a 4-month processing time reported for a service center indicates that the inventory of pending cases (waiting to be processed) was equal to the number of cases that the center had received over the past 4 months. This means that the processing times are somewhat backward looking in the sense that they do not necessarily reflect how long a new case would remain pending.
USCIS also shows the online processing times based on workload processing goals. If USCIS is processing a specific type of a petition in less time than the processing goal, the processing time would be shown in months. If USCIS is taking longer than the processing time goal to handle a case, USCIS will post the specific filing date of the oldest pending case the service center has to process as of the date of the processing time chart.
USCIS’s methodology in calculating the processing times is as follows: USCIS only calculates the time a case is considered to be actively pending with USCIS and is under adjudication. It does not take into account the time USCIS is waiting or an action by the applicant or petition. As an example, the time is takes for USCIS to issue and wait for a response to a request for evidence (RFE) (usually 84 or 87 days), is not reflected in the processing times.
USCIS Working to Provide More Recent Processing Times Information
Another substantial problem with the processing times report is that the data is simply very old. Often, by the time a processing times report is published online, it is already 30-, 45- or even 60-days old. USCIS has indicated that it works with its internal IT and Performance and Quality Departments to try to speed up the information gathering and reporting process. According to USCIS, the current process of gathering the processing times information is manual and based on self-reporting. USCIS is working on a new system which should allow automated, accurate and faster reporting. The system is currently being tested and is scheduled for implementation in early fiscal year 2013.
Reliability vs. “Outside of Processing Times”
With all of this background information on how the USCIS processing times reports are compiled, it should not come as a surprise when many start to question the reliability and the usefulness of the processing times reports. Yes, they may not reflect the most recent information and yes, they may not be fully accurate, but they do serve an important purpose in the adjudication process and our office takes full advantage of the processing times reports to advance our clients’ cases.
Normally, when a case is “within” the normal processing times, there is often very little or nothing that can be done to try to move the case forward. However, when a case is considered to be outside of the reported processing times, the government allows a service request to be opened and to look into the case status and seek to have it “expedited” or, at least, reviewed. This is when the processing time reports become very useful — if a case is pending beyond the normal processing times, as current reported by USCIS, then it may be an option (and a good idea) to seek to open a service request with USCIS on the status of the case. In the past, on many occasions, we have been able to secure quick case adjudication by opening service request on a case which is pending beyond the normal processing times; as a result, while the actual report may not be very reliable and accurate, it is an important tool case management tool.
The ability to obtain recent, accurate and timely information on a case’s processing status and expected turnaround is vital for our office and for our clients and readers. We remain hopeful that USCIS would continue working towards improving their online case status system and its processing times reports. We will continue monitoring this subject and provide updates to our clients and readers. Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments
The large Indian technology company Infosys has agreed to pay $34 million in a civil settlement after federal prosecutors in Texas alleged it had committed “systemic visa fraud and abuse” when bringing temporary workers to the U.S. on H-1B and B-1 visas. This kind of settlement is the largest ever in a visa case and while the details are scarce at this point, it shows that the U.S. government is starting to crack down on large scale abuse of some of the most common visa programs.
The Allegations and the Settlement
After an investigation of more than two years, prosecutors are expected to unveil today the settlement after accusations that Infosys knowingly and unlawfully brought Indian workers into the U.S. on business visitor visa (B-1) dating back to 2008. Additionally, Infosys is accused of having conducted improper I-9 compliance. The company has agreed to pay $5,000,000 for civil or administrative forfeiture. It will pay $5,000,000 to the Department of State for Civil or Administrative forfeiture, and $24,000,000 to the U.S. Attorney’s Office for the Eastern District of Texas.
One of the reasons Infosys used the B-1 visa so extensively is that unlike the H-1B work visa (a common alternative), the B-1 has no annual quota and the costs are many times lower than for H-1B. According to the allegations, Infosys systematically submitted misleading information to U.S. immigration authorities (at the Consulates and at the port of entry) in order to secure admission to its B-1 business travelers.
For example, the settlement alleges that an invitation letter submitted by Infosys in 2008 stated that the purpose of the B-1 visa trip was for “customer discussions and related business development activities”, when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorized under a B-1 visa such as coding, programming, testing, implementing, etc.
The settlement also alleges irregularities with the H-1B/LCA program compliance. Prosecutors cite instances where Infosys H-1B workers who applied for an H-1B visa stamp were directed by Infosys to inform the U.S. immigration authorities that their actual workplace destination in the U.S. was the same as the workplace described in the Labor Condition Application (LCA) supporting the H-1B petition; however, Infosys and the foreign workers both knew that the foreign nationals have been assigned to work at a different U.S. worksite (not mentioned in the LCA or H-1B documents).
The settlement also alleges I-9 compliance irregularities. After an investigation, federal authorities are alleged to have discovered significant I-9 compliance irregularities which could have allowed thousands of foreign nationals to continue working in the U.S. even after their visas or authorized status had expired.
Three Lessons from the Infosys Case
Our office is not familiar with the details of this case other than what is being reported in the media. Over the next few days, more details are certain to come out. But we would like to focus on the allegations and draw some important lessons for the benefit of our readers and clients.
B-1 Visa and Status Do Not Authorize Work. The B-1 business visa program is designed to allow foreign nationals to come to the U.S. for a short period of time (less than six months) for the purpose of conducting business — conduct meetings with vendors or partners, visit a production facility, negotiate a contract or financing, training customers or partners, giving a speech or a presentation or similar business-related activity. The B-1 visa does not allow work in the traditional sense of the word — engaging in a productive work, paid or unpaid.
H-1B and LCA Documents Should be Correct and in Compliance. When submitting an H-1B visa stamp application or then traveling to the U.S. on H-1B status, both companies and H-1B workers should ensure that their H-1B and LCA documents reflect accurately the terms of the H-1B employment, including the actual H-1B worksite (for third-party placements). When necessary, a new LCA and, possibly, an H-1B amendment should be processed as quickly as needed and as possible, even if this is after the fact (in other words, late compliance is better than no compliance).
I-9 Compliance Matters. For employers of all sizes, it is easy to dismiss I-9 compliance activities, especially once an initial I-9 is completed. But the Infosys settlement proves that the government will do I-9 investigation often in conjunction with another immigration violation, take seriously a number of irregularities and assess significant fines. For all companies, but especially those who employ at least one foreign national, I-9 compliance and re-verification are becoming very important.
We will continue to monitor and report on additional important details and developments stemming from the Infosys settlement. At the same time, we hope that the Infosys case will serve as a reminder that it is important to have adequate internal policies to ensure B-1, H-1B/LCA and I-9 compliance.
In addition to handling a number of visa matters, such as B-1 and H-1B, our office has developed a leading practice of I-9 compliance and we are able and happy to provide compliance advice on these issues. Please feel free to contact us if our office can be of any assistance. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.No comments
Visa Bulletin Predictions and Updates from Charles Oppenheim – Major Retrogression in EB-2 India (October 23, 2013)
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 December 2013 Visa Bulletin — going back to late 2004 or early 2005. EB-3 India will remain unchanged or retrogress slightly over the near term. EB-3 ROW will move forward significantly (by a year) in the near term (few months), with possible slowdown towards the middle of the fiscal year.
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). As a result, and in recognition of the 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.
He also explained that the number of EB-3 to EB-2 porting cases is very significant and because the mechanics of the EB-3 to EB-2 porting system 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. As an example, Mr. Oppenheim cited that between October 1 and October 22nd his office noted that there were approximately 800 Indian nationals who ported from EB-3 to EB-3. 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 late 2004 or early 2005) in the upcoming Visa Bulletin and would be held back for a significant period of time, very likely until the summer of 2014.
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 China category where the demand has been growing steadily (approximately 15% over the year before) and that a cutoff date for EB-5 China is possible later this fiscal year (possibly around June 2014). 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 and China 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; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of 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 late 2005 or early 2005 as early as the next Visa Bulletin. It is expected that EB-2 India will remain at that level (late 2004 or early 2005) until the summer of 2014. 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 (up to one year) over the next one or two months to stimulate “demand” for the next several months.
EB-3 China/Philippines. Each of these two categories is expected to keep moving forward by 2 weeks per month.
EB-3 India. Unfortunately, this category continues to be oversubscribed and there is no forward movement expected in the next (December 2013) Visa Bulletin. In addition, Mr. Oppenheim indicated that a retrogression is very possible in the near future. This would be caused by the fact that there are simply too many EB-3 India applicants waiting for a visa number to become available. 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 on an upward trajectory and he indicated that the most recent fiscal year noted a 15% increase in EB-5 China cases. This makes it likely that there would be a cutoff date introduced towards the summer for EB-5 China (only).
Visa Bulletin Predictions – Family-Based
Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.
FB-1 ROW. This category is expected to advance by 3-5 weeks per month.
FB-2A. This category is expected to be held at its current level for the foreseeable future. Mexico is likely to retrogress.
FB-2B. This category is expected to advance by 3-5 weeks per month.
FB-3. This category is expected to advance by 3-5 weeks per month.
FB-4. This category is expected to advance by 2-3 weeks per month.
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.
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.No comments
As an E-Verify designated agent, the Capitol Immigration Law Group handles the E-Verify processing for many employers and we would like to pass on some important post-government shutdown E-Verify information to our clients and to all companies who are working with E-Verify. Most importantly, USCIS has confirmed that the E-Verify system is now back online and operational. As a reminder, even though USCIS was largely not affected by the shutdown, the E-Verify system had to be shut down on October 1 as part of the partial government shutdown. But as the government is not open again, E-Verify is now back online.
Form I-9 Requirements Not Affected By Shutdown
The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.
E-Verify 3-Day Requirement Extended to November 5, 2013 for Shutdown-Affected Cases
E-Verify requires that an employer create and submit an E-Verify case check within 3 days of hire. However, due to the shutdown, this was not possible and now USCIS is providing some guidance to those E-Verify cases which were delayed due to the shutdown.
According to USCIS, each employer (or their designated agent) must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If the employer is prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.
Employees who received a Tentative Nonconfirmation (TNC). If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, USCIS instructs the employer to add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If there is an employee who decided to contest his or her TNC while E-Verify was unavailable, the employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.
Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show Result. If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, USCIS instructs the employer to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.
E-Verify and Federal Contractors
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, USCIS advises the organization to notify their contracting officer.
Employees Afforded Additional Time to Contest Tentative Nonconfirmation (TNC)
If the federal government shutdown prevented an employee from contesting a Tentative Nonconfirmation (TNC), USCIS advises that the employee will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If the TNC was referred between September 17, 2013 and September 30, 2013, and the employee was not able to resolve the mismatch due to the federal government shutdown, the employee should add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays. The employee should then contact SSA or DHS by the new date to resolve the TNC.
On the other hand, if an employee received a Final Non-Confirmation (FNC) because the employee could not contact DHS or SSA during the federal government shutdown, or because the employee could not contact DHS or SSA in the first ten days after the government reopened, the employee should contact the employer and request that the employer re-enter the employee’s query.
We hope that these notes and guidance from USCIS on what E-Verify employers and affected employees should do if their case is affected by the shutdown is helpful to our clients and readers. We should caution that the E-Verify system may experience delays and glitches as a result of the shutdown and the increased usage of the system.
As a designated E-Verify agent, we are able and happy to handle this (and related E-Verify) processes on behalf of our corporate clients. Please feel free to contact us if our office can be of any assistance or if we can provide an E-Verify services proposal. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.No comments
The 16-day long partial U.S. federal government shutdown has ended last night after both chambers of the U.S. Congress passed a (temporary) budget measure (more on this below) and, after the President signed it, reopened the U.S. federal government. As of today, October 17, 2013, federal workers are expected to be on the job. However, due to the 16-day shutdown and the late night order to reopen, it is expected that it would take some time (days or weeks in some cases) for federal agencies and operations to resume normal operations. We have written over the past 2-3 week on the impact on immigration caused by the partial government shutdown and while we are happy to see the government resume operations, we expect that immigration-related services to be, at the very least, heavily backlogged for some time.
Department of Labor Likely to be the Major Cause of Immigration-related Delays
Many U.S. employment-related visas (immigrant and non-immigrant) rely extensively, at least during some portion of the process, on the Department of Labor (DOL) – for example, H-1B work visas require a Labor Condition Application (LCA) to be certified by DOL. An initial stage of the employment-based green card is the filing and the approval of a prevailing wage determination by DOL, followed by the filing and approval of a PERM Labor Certification. As we had commented over the past few weeks, DOL was severely affected by the shutdown with the majority of DOL’s workers being furloughed and many DOL electronic systems being shutdown over the past 16 days.
As of the time of publication of this article, DOL’s electronic systems for LCA and PERM Labor Certification processing were still not operational. We hope that as DOL IT workers trickle into work this morning, these systems will become operational. Unfortunately, we also expect that these systems may be overwhelmed with traffic as many employers and their law firms (ours included) will rush to file all of the LCA and PERM Labor Certification applications which were put on hold over the last 16 or so days. We hope that DOL’s systems will be able to accommodate the traffic and the demand — our general estimates are that there may be many thousands of LCA applications waiting to be filed. With this in mind, we caution our clients and readers to exercise caution and patience in the first few days after DOL reopens.
In addition to the new rush of filings, DOL is already sitting on a number of applications which were filed and pending as of October 1st when the government closed. This will only add to the backlog of applications. All of this is likely to result to dramatic increase (at least and hopefully only short-term) in the processing times for LCA and PERM applications. Even before the shutdown, PERM applications were experiencing some of the longest processing times for the past few years; the shutdown would not help.
USCIS’s E-Verify System Should be Back Online
The major impact on immigration caused by the government shutdown has been via the shutdown of DOL’s operations, as discussed above. However, other immigration-related functions were also affected. Most importantly, the E-Verify system should be back online soon (it was not as of the time of this article) and would allow employers to complete a number of pending (and delayed) employment verification checks. During the shutdown, USCIS advised E-Verify employers that the ‘three-day rule’ for E-Verify cases will be suspended for cases affected by the shutdown. Now that E-Verify is expected to go back online at any time, employers must rush to complete these E-Verify checks. An important note is that the fact that an employer did not have to do an E-Verify check during the shutdown period, does NOT affect the Form I-9 requirement — employers must still (and should have) completed the Form I-9 no later than the third business day after an employee started work for pay.
Careful Planning and Preparation for Delays and Backlogs Important
In light of what we expect to be delays and backlogs, especially at DOL due to the significant volume of new applications to be filed, we caution employers and applicants to anticipate and plan for delays. We understand that many H-1B applications (especially extensions for H-1B petitions which are expiring) are held by DOL and it may cause H-1B petitions to expire without an ability to extend. There are ways to handle a late-filed H-1B petition with USCIS and request a retroactive H-1B approval date due to these extraordinary circumstances. But there are also cases where H-1B workers desperately rely on the filing (or approval) of a PERM application to be able to continue extending their H-1B beyond the six-year H-1B limit and in those cases, there may not be many options to “fix” the possible damage caused by the delay.
Another Shutdown on the Horizon?
The deal which the U.S. Congress reached last night to fund and reopen the government and raise the U.S. debt ceiling is, unfortunately, a short-term deal. Under the current agreement, the government is funded through January 15, 2014 and the debt ceiling is lifted until February 2014 or shortly thereafter. What this all means is that if Congress does not make a budge agreement over the next 2-3 months, it is entirely possible that there will be a similar government funding fight and a possible government shutdown on January 15, 2014, or only three months from now. We hope this is not the case, but we still would like to caution our clients and readers to this possibility.
Over the past few weeks we have consulted with anxious employers and applicants whose immigration status and processes have been severely impacted by the shutdown. With this in mind, while we are hopeful that the reopening of the government and DOL, specifically, would be smooth, we caution employers to consider alternatives if they or their employees rely on a time-sensitive action by DOL. Our office is certainly happy to consult and provide suggestions. Please feel free to contact us. Our office would also continue to monitor developments and provide timely updates. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.No comments
A very common question by the holders of visas which have employment restrictions is, “Can I engage in unpaid volunteer work under my visa?” We deal with this question on a daily basis when we are asked by clients whether someone who is in the U.S. (on a status which does not allow employment) can be a volunteer.
Obviously, the answer to this question depends on a number of factors including, most importantly, the visa type and the status of the person who is seeking to engage in a volunteer work. For example, an H-1B holder is authorized to work for the H-1B sponsor employer (or employers — if there are more than one) but the H-1B worker is not allowed to do any work for any other employer. Similarly, students on F-1 (who do not have a valid work permit – OPT, CPT) are not allowed to work for any employer (with certain very limited exceptions for work on campus).
Volunteer Work is Not License to Do Any Work
The answer to the question whether volunteer work is permitted depends on the type of unpaid volunteer work one is seeking to perform. The regulations state in broad terms that unauthorized work is prohibited. But to distinguish whether volunteer work is unauthorized, it is helpful to understand the government’s motives in setting up this regime. The USCIS’s goal is to prevent foreign nationals who have employment restrictions in engaging in work which could give them an advantage over U.S. citizens or which could drive down Americans’ wages or benefits. Therefore, it is not permitted to volunteer for a productive position which is usually paid. The rationale is that if you are offering to work without a pay in a job which would otherwise be filled by an American who would be paid, then you are subverting the employment authorization system’s goals and undercutting Americans’ job prospects and wages.
However, if the volunteer work you are seeking is for a true volunteer position then volunteering and working without pay would be legal. For example, volunteering at a non-for-profit organization such as a museum, a fire-station, a school or a church where there is no general expectation of compensation, or employment may be okay.
As a general rule of thumb, one should look at whether Americans would perform the same job without pay and under similar circumstances and if the answer is “yes,” then a foreign national in an employment-restricted status can volunteer and work without pay.
We should point out that any time there is any doubt as to whether a specific engagement as a volunteer may or may not be considered “work” we suggest consultation with us or another attorney who can go into the particular visa circumstances and the details of the proposed volunteer assignment. We also 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.No comments