Labor Immigration Law

United States Labor Immigration Law News and Analysis

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AAO Processing Times Report (November 1, 2009)

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

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

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

Among the most notable AAO processing times:

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

Read the full AAO Processing Times report.

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USCIS Memo Amends Certain I-140 Related Provisions of AFM

In a Memorandum, dated September 14, 2009, Donald Neufeld, the Acting Associate Director for Domestic Operations as USCIS, provides some clarifications and amendments to the Adjudicator’s Field Manual relating to Form I-140, Immigrant Petition for Alien Worker.

1.  Definition of Employer for Outstanding Researchers or Professors under Section 203(b)(1)(B).

Each EB-1B petition  for outstanding researcher or professor must include, as part of the initial evidence, an offer of employment by a prospective U.S. employer which offers the candidate a tenure or tenure-track teaching position or a permanent research position.    The employer must be a university, institution of higher education or a department, division or institute of a private employer if such department, division or institute employs at least 3 persons full-time in research activities.  8 C.F.R.  204.5(i)(3).

The Neufeld Memorandum clarifies that government agencies do not fit into this definition of employer for EB-1B petitions unless the government agency is actually a U.S. university or an institution of higher learning.   Accordingly, government agencies which do not fit into this definition of employer may not pursue EB-1B petitions.  However, they may be able to apply under a different section assuming the beneficiary qualifies, for example Section 203(b)(1)(A).

2.  Approved Labor Certifications’ 180-day Validity Period

The Department of Labor (“DOL”) has established a validity period of 180 days for approved labor certifications.  As a result, an approved labor certification must be filed in support of a Form I-140 petition during the labor certification’s validity period.    DOL has not, however, established any rule regarding the approved labor certification’s validity when its expiration falls on a Saturday, Sunday or a federal holiday.

In the Neufeld  Memorandum, USCIS takes the position that it would accept I-140 filings where the supporting labor certification validity period ends on a Saturday, Sunday or a federal holiday on the next business day.    This is consistent with other USCIS policies which allow for the filing of petitions and applications that fall on a Saturday, Sunday or a federal holiday to be extended until the next business day.

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Helpful H-1B Filing Tips

We have written before about the H-1B quote of 65,000 which opens on April 1, 2008 for starting employment date of October 1, 2008. We anticipate that the entire quota will be used on the first day of the filing. In light of such a small filing window, it becomes critical that the H-1B petition be completed and filed correctly.

Here are few helpful H-1B filing tips.

  1. Clearly label all H-1B cases in red ink on top margin of Form I-129 petition. Use the following codes:
    • Reg. Cap (65,000 regular cap cases)
    • C/S Cap (Chile or Singapore H-1B1s)
    • U.S. Masters (20,000 cap exemption for Master’s degree or higher holders)
    • Exempt (for petitioners filed by certain institutions of higher education; nonprofits; and research organizations. Also, note new filing address for this category.)
  2. Fill out Form I-129 and supplements correctly, consistently, and competently. This is an obvious one but it is worth mentioning again.
  3. Employer must submt the correct filing fee:
    • Base filing fee: $320
    • American Competitiveness and Workforce Act of 1998: $750 for employers with 1 to 25 full time employees unless exemption applies or $1,500 for employers with 26 or more full time employees unless exemption applies
    • Fraud fee: $500
    • Premium Processing Fee: $1,000
  4. Send only one petition per envelope.

Note that incorrectly completed or filed petitions may result in rejection or denial of the petition.

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Importance of Address Change

Many non-U.S. Citizens residing in the U.S. consider the change of address obligations imposed by the USCIS as unimportant and of no significance.  This is a mistake.  In a recent meeting between the National Benefits Center (NBC) and the American Immigration Lawyers Association (AILA), the NBC reminded all immigration attorneys and their clients that a change of address is an important procedure and it must be done in two separate ways.

First, the foreign national must file form AR-11 with the USCIS in Washington, DC.  Under the current regulations, all foreign nationals, including permanent residents), and without regard to whether they have petitions or applications pending with the USCIS must file the AR-11 form within 10 days of change of address.  This is a separate requirement which is not related and does not automatically affect the USCIS address change (see below).  The AR-11 form can be filed on paper or online.  It is important to keep a proof of filing such change of address.

Second, if the foreign national has current pending immigration-related petitions or applications, they must notify the USCIS of their new address by calling USCIS (at 1-800-375-5283) or by using their online system.   USCIS recommends these two methods as the best ways to update an address with regard to pending applications and petitions. The requested change will be processed within three days of receipt.

As a conclusion, we would like to underscore the importance of timely filing address of change with the USCIS whether or not the foreign national has pending petitions with the USCIS.  Failure to do so may result in long delays in processing or even denial of immigration benefits.

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