This lawsuit focuses on the government’s H-1B visa review and processing procedures.  Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.

On June 25, 2010, the government filed a Memorandum in Opposition to the complaint.    The opposition is mainly based on technical arguments.  However, the government makes also the arguments that its policy-making ability pursuant to memoranda is exempt from the Notice and Comment requirements for rulemaking and that the plaintiffs have failed to show irreparable harm if the preliminary injunction were to be granted and, most interestingly perhaps, that agency memoranda are do not have the force of regulations and are just a suggestion to adjudicators on review criteria.

Subsequently, on July 9, 2010, the plaintiffs filed a reply to the government’s Memorandum of Opposition.  In it, the plaintiffs directly address the government’s arguments, including the argument that the policy memoranda does not constitute a regulation.   Plaintiffs argue that the policy guidance may not explicitly state that it is binding; however, in spirit and practice, it actually is.

We will continue to monitor the developments in this case as it affects a large number of our readers and clients.  Furthermore, the impact of this lawsuit may be broader than just the Neufeld Memorandum as the scope of the case may expand to cover other USCIS memoranda.   If you haven’t already, please subscribe to our free weekly newsletter to receive news and updates on this and related topics.

A formal proposal has been published in the Federal Register and there is a 45-day comment period.   Some of the increases are substantial, especially when considered in conjunction with the ~60% fee increase done in 2007.   For example, an I-130 petition for an alien relative will jump from $355 to $420.  An I-131 application for a travel document goes up by $55, and an application for an employment authorization document increases by $40.  Adjustment of status fees will increase by $55.  Businesses will also need to pay more – I-140 petitions for immigrant workers are increasing by over $100, premium processing fee is going up by $225 and a brand new fee of $6,230 is proposed to establish a Regional Center under the EB-5 program.

The USCIS justification is plain – our costs are high, our revenues are low, we need to either decrease service (by having less adjudicators and by increasing processing times) or to raise fees.   In a conference call to discuss the fee increase, USCIS Director Mayorkas explained that the fee increase is necessary to bridge the $160 million budget shortfall at the agency.

The 45-day comment period is due to expire in late July, so we encourage our readers and clients to comment on the proposed fee increase.  We will continue monitoring this proposal and will announce any developments with respect to any changes to the rule or to its effective date.   Please subscribe to our weekly newsletter to receive timely updates on this and related topics.

In addition to being able to obtain basic case status information or obtain services related to immigration through the USCIS customer service phone line, InfoPass is a free service which allows scheduling an appointment with a USCIS immigration officer by using the Internet.  InfoPass is helpful for resolving immigration issues that are best handled by a trained USCIS immigration officer or where certain information or documents need to be presented for review or processing.

Scheduling an InfoPass Appointment

InfoPass is free – it costs nothing to schedule an appointment via the USCIS website at http://infopass.uscis.gov/.  When scheduling an appointment, the InfoPass website allows selection of the closest USCIS center to a given address.  After completing the registration form, the system allows the selection of a time and date with available InfoPass appointments.  Generally, as InfoPass appointments are often cancelled or added, the selection will vary by area and time of the day and time of the year.

Appointments can be canceled or rescheduled through the InfoPass website.  Since USCIS centers can be very busy in many areas of the country, we always encourage our clients and readers to cancel their InfoPass appointments if they cannot make them as early as possible to allow somebody who may need urgent help to be able to take the appointment.    Lost InfoPass notices can be reprinted online as well.

What Should I Bring to My InfoPass Appointment?

In order for the USCIS immigration officer to be able to resolve a particular issue, there may be a need to bring good information and documents to the InfoPass appointment.  In addition to the InfoPass appointment (printed when scheduling the appointment) and a government-issued ID, the government asks that any relevant documents be taken along.  Such documents can be immigration forms, receipt notices, approval or denial letters, translations and original documents that relate to a particular inquiry or problem.

Suitability of InfoPass Appointments for General Inquiries

InfoPass is a great tool for solving issues on immigration cases.  However, it is not suitable for a number of other inquiries.  Routine inquiries can be handled quickly and easily over the phone or Internet.   It is generally best to try to resolve an inquiry or a problem by calling the National Customer Service Center at 1-800-375-5283 and speaking with immigration officer (see our guide to NCSC).

USCIS Sued to Prevent Enforcement of the Neufeld Memo Guidelines

In a five-count complaint filed by a coalition of staffing companies and representative trade associations, the USCIS is asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications.  The case is Broadgate v. USCIS and is assigned to Judge Kessler at the U.S. District Court for the District of Columbia.

The complaint alleges that the Neufeld Memo abruptly altered long-standing agency policy which has permitted companies from placing H-1B workers at third-party job sites.  The complaint further alleges that existing USCIS guidelines specify that an employer-employee relationship does exists when the petitioner company may “hire, pay, fire, supervise, or otherwise control the work of any such employee.”  The plaintiffs in this case claim that the Neufeld Memo constitutes a legislative regulation because it sets forth new binding standards that prevent employers that place employees at third-party worksites, but which otherwise meet the regulatory definition, from sponsoring H-1B nonimmigrants.

The complaint alleges that the new policy (i) is contrary to existing law and regulations, (ii) is arbitrary and capricious because the government failed to articulate a policy justification, (iii) violates the Administrative Procedure Act notice-and-comment requirements, and (iv) should have been issued following a certification under the Regulatory Flexibility Act (which requires regulators to consider the potential impact of regulations on small business).

Conclusion: More to Follow

Our office has been very involved in this issue from the publication of the Neufeld Memo and we have seen the impact of the memo on H-1B adjudications and RFEs.   USCIS has been under some pressure to amend the Neufeld Memo, at least in some respects, and this lawsuit is certain to put more pressure on resolving this controversy.  We will continue monitoring this case and the Neufeld Memo developments coming out of USCIS and will provide updates.  In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

Features of the Redesigned Green Card

Among the main features of the redesign: secure optical media will store biometrics for rapid and reliable identification of the card holder. There will be a holographic images, laser engraved fingerprints, and high resolution micro-images which will make the card nearly impossible to reproduce.  There will be a tighter integration of the card design with personalized elements will make it difficult to alter the card if stolen.   Also, a Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data.   Finally, a preprinted return address will enable the easy return of a lost card to USCIS.

Design

The “green card” is now actually “green”  in color and design patterns.   Samples of the front and back are shown below:

Frequently Asked Questions

Who can obtain the new green card?  All requests for initial or replacement (renewal) green cards, once approved, will be issued the green card, as newly redesigned.  USCIS has not announced a campaign to replace the existing green cards which are currently valid and in circulation.

What is the cost of replacing a green card?  The application filing fee for an application to replace a green card is $370.00.

How to apply to obtain a damaged or lost green card?  A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card.  If abroad, the permanent resident should contact the nearest consulate, USCIS office or port of entry before filing Form I-90.  Our office can help you with the green card renewal or replacement application – please contact us.

What Can the NCSC Do for Me?

The NCSC operates on a two-tier model.

Tier 1 Customer Service Representatives (CSRs):

Visa Waiver Program (VWP) Travelers

Overstay of the period noted on the I-94W card may make one a VWP traveler ineligible for future travel to the U.S. under VWP and require visa application for future travel.   For those in the U.S. under the VWP, contact the CBP airport office or the nearest U.S. Citizenship and Immigration Services (USCIS) office. There will be a few travelers with no I-94W under the pilot paperless I-94W project.   There is a passenger service manager list for international airports.

Per relevant regulations, 8 CFR § 217.3:

Satisfactory departure: If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Travelers on Nonimmigrant Visas

For those in the U.S. under a nonimmigrant visa, CBP directs them to apply for an extension of nonimmigrant status. Even though an I-539 extension is normally recommended to be filed 45 days before expiration, CBP notes that some arrangement regarding this point has been made. Of course, the I-539 extension filing fee is $300. At present, it is not clear whether the satisfactory departure option is available for VWP or nonimmigrant visa holders unable to depart the U.S. due to the effects of the volcano.

In a USCIS alert regarding the situation, travelers on nonimmigrant visas are advised to to either (1) visit the local USCIS office and bring passport, cancelled flight itinerary and I-94 card or (2) apply for an extension of status as soon as possible by filing Form I-539.

USCIS Naturalization Interview and Test Video

This video should  be very helpful to naturalization applicants  to become familiar with the interview and test process and to get a better sense of what they should expect.

Today, USCIS released the first “official” FY2011 information on the numbers of cap-subject H-1Bs filed since April 1 for both the Vermont and California Service Centers.  As of April 8, 2010, USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap.   This count means that as of April 8, there are 51,500 H-1B visas left under this year’s H-1B quota and USCIS will continue to accept petitions subject to the general (regular) cap.

Similarly, as of April 8, there were 5,600 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).  This means that as of April 8, there are approximately 14,400 visas left under the U.S. Masters H-1B cap.

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.  You may want to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

Note that this information is for the Vermont Service Center.  The California Service Center, the second service center processing cap-subject H-1B petitions has not announced any numbers yet. 

H-1B Quota Trends

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  So early in the process for this year, and especially without the California Service Center numbers, it is impossible to draw any trends; however, stay tuned for more numbers and updated trends over the next days and weeks.

In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

In a letter dated March 19, 2010 addressed to the USCIS Director, AILA puts forward a renewed call for rescission of the Neufeld Memorandum by explaining the unintended and burdensome consequences of the Neufeld Memo.  The AILA letter discusses the economic impact of the Neufeld Memo on a number of H-1B petitioners.  Also, the letter discusses the undesired and unintended (according to AILA) impact of the Neufeld Memo on a number of industries:

• physicians – since many states prohibit the physician to work directly for a hospital, many physicians are unable to obtain H-1B under the Neufeld Memo employer-employee relationship standard because they cannot, by law, be sponsored by the employer where they will actually work.
• government contractors – many government contractors operate on a purely third-party worksite placement system, and for many of these contractors, the Neufeld Memo precludes hiring H-1B workers.
• H-1B entrepreneurs/job creators – the Neufeld Memo would also prevent H-1B visas to be issued to foreign entrepreneurs (and job creators) who have some ownership interest in their U.S. company.
• IT consulting companies – meeting the Neufeld Memo obligations also impacts IT consulting companies, which have very useful in helping larger companies set-up projects quickly and with the right staffing.

The AILA letter concludes that the Neufeld Memo should be rescinded because of its negative impact on a number of industries and the fact that the de facto rulemaking is done in violation of the Administrative Procedures Act.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment.  The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job.    Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job.   Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location.  While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process.  The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment.   Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status.   Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied.  Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will  be required as initial evidence with any Form I-129 petition.   USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person.  Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement.  The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation.  Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate.  Currently, duplicates are necessary for petitions requesting consular processing.   However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers.  Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it.  Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

Processing Times

TSC has confirmed that the pending application reports posted on the USCIS status check website are generally correct.  I-485s filed prior to March 26, 2009 that are still pending should be in for processing and for those I-485s, a streamline request is appropriate.  Similarly, TSC has completed review of derivative I-485 that have become separated from the primary I-485, so a streamline request may be appropriate in such cases as well.

AC21 Porting Notifications

TSC is expecting guidance from USCIS headquarters regarding cases in which the I-485 has been preadjudicated and waiting visa number but where a request for recent job verification may be necessary.  Currently, there are a high number of preadjudicated I-485 waiting for a visa number; however, many of these I-485 applicants have changed jobs pursuant to the AC21 portability provisions.

It is currently unclear whether TSC will issue an RFE requesting a more recent employment verification letter for these preadjudicated cases.  While TSC has indicated a preference to receive AC21 notifications generally, such notifications are not required.  Pending USCIS headquarters guidance, we still recommend that AC21 change of employer notifications be filed to “preemt” a possible RFE regarding employment verification even for preadjudicated I-485 cases.

Transfers from TSC to National Benefits Center (NBC)

TSC has confirmed that generally, the reason for transferring unadjudicated cases to NBC is when a I-485 requries an interview.  TSC transfers the “A file” to NBC which will then send it to a local office for interview.   Generally, TSC does not transfer cases to other centers for workload reasons.

Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.

Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.

Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2011 starting on October 1, 2010.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2011 H-1B cap is April 1, 2010.  By law, the earliest starting employment date for petitions approved under the FY2011 H-1B cap is October 1, 2010.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAS tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2010 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2011 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   Last year, for FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until December of 2010.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2010 fiscal year the cap was hit in December 2009, we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 1, 2010.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

One of the points of the story is that the EB-5 program may be considered as a unfair “pay-to-play” program where foreign nationals “buy” their U.S. visa.  Of course, the story provides plenty of support for the EB-5 program which is considered by many to be a beneficial job-creating and foreign capital-attracting program in these difficult economic climate.

NPR story:  For Some Immigrants, The Ticket To A Visa Is A Check.

It is helpful to describe the criteria which USCIS (and our office, in preparing such requests) uses in establishing whether a particular case warrants expedited processing:

• Severe financial loss to company or individual;
• Extreme emergent situation;
• Humanitarian situation;
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government);
• USCIS error; and
• Compelling interest of USCIS.

Expedited processing can be requested for both an application which is about to be filed (by indicating clearly EXPEDITED PROCESSING on the cover) or for a pending application (by contacting the National Customer Service Center at 1-800-375-5283 or by sending a fax to the applicable Service Center).

Additionally, our office routinely handles expedited processing requests and we are happy to discuss your case and whether it can be expedited and, if so, whether we can help you.  Please contact us for more information.

The Report’s Findings

The report focused on many aspects of E-Verify, but the main number which has drawn attention recently is the fact that according to the Westat report, 54% of the unauthorized workers run through E-Verify result in an authorization to work.  Westat and USCIS attribute this high number to identify fraud – unauthorized workers who use and submit documents of a person who is authorized to work.  However, this high percentage of inaccurate E-Verify authorization has stirred some political and emotional responses.  See Wall Street Journal and Forbes articles.

Overall, Westat found that an estimated 96 percent of all E-Verify initial responses were consistent with the person’s work authorization status:  93.1 percent of all E-Verify cases involved authorized workers who were initially found to be authorized; 2.9 percent of all E-Verify cases involved unauthorized workers who received final non-confirmations.

4.1 percent of the initial responses were inconsistent with employment eligibility status: 0.7 percent of all E-Verify cases involved authorized workers who were not initially found to be authorized to work; 3.3 percent of all E-Verify cases involved unauthorized workers who were found to be employment authorized.

Although the numbers, overall, are positive, the main concern and recent political storm came after breaking down this number relating to the 3.3 percent of all E-Verify cases involving unauthorized workers who were found to be eligible to work.  Put in another way, out of the 6.2 percent of all E-Verify cases in which the workers were not authorized to work, the system failed to discover the unauthorized worker and permitted work 54 percent of the time.

USCIS’ Response

In the summary of the report, USCIS tries to defend this alarming number of inaccurate work authorizations by putting the numbers in context and by showing the high success rate across other categories.  While this is true, one of E-Verify’s main goals was to eliminate unauthorized work.  The Westat report casts shadow on this.   USCIS has taken steps to eliminate or decrease this rate of inaccurate authorizations.  It is USCIS’ claim that most of these false authorizations are due to identity theft – as a result, USCIS is implementing a photo tool as part of E-Verify so that employers can match the photo of the documents submitted, with one in government records, and with the actual employee.  Additionally, USCIS is attempting to integrate additional government databases to be able to provide more accurate and reliable information into E-Verify and increase its accuracy rate.

Basis for the Report

The report was based on several sources of data covering September 2007 to June 2008: USCIS staff and contractor interviews, focus groups, web survey of 2,320 E-Verify employers, in-person interview with 109 E-Verify employers and 424 workers who have received tentative non-confirmations (TNC), review of 1,246 records of workers who received TNCs and review of E-Verify program data.  Additionally, Westat developed models to develop estimates of the numbers of true employment authorizations; models were necessary because the true data is unavailable.

Conclusion

The Westat report is very useful in evaluating the E-Verify program’s current state.  Obviously, the 54 percent inaccuracy rate discussed above is going to be the focal point of discussions related to E-Verify over the near term.  It is worth noting, however, that the Westat report used data which is not at least 18 months old and E-Verify has steadily been improving the accuracy of its data and models.  Additional tools, such as the photo tool, are also helpful in eliminating certain types of work authorization and identify fraud.

We applaud USCIS efforts to improve E-Verify and to engage independent third parties to conduct research and test the accuracy of the system.  As an E-Verify Designated Agent, we have helped many of our clients handle with a number of E-Verify issues and have been happy with the willingness of USCIS to improve the system.

AILA Seeks Rescission of the Neufeld Memorandum

Our office has revised its standard H-1B preparation guidelines for third-party worksite H-1B petitions to comply, to the extent possible, with the new requirements imposed by the Neufeld Memorandum.  In the meantime, the American Immigration Lawyers Association (AILA), in a January 26, 2010, Memorandum addressed to the Chief Counsel of USCIS, calls for the rescission of the Neufeld Memorandum effective immediately and for the issuance of a new memorandum to redefine the employer-employee relationship differently, considering legal precedent.

The AILA Memo is quite lengthy (24 pages) and goes into a great detail to substantiate its main claims that (1) the Neufeld Memorandum improperly creates substantive new rule outside the proper channel for making such rules and (2) that the employer-employee relationship definition in the Neufeld Memorandum is improper and is against congressional intent.

The Neufeld Memorandum is Improper Rulemaking

As an initial matter, AILA argues that the Neufeld Memorandum is issued improperly  because it seeks to change substantive rules without the necessary process.  Change in substantive rules must be done by following the required notice and comment procedures.  AILA argues that the “guidance” in the Neufeld Memorandum is a substantive rule change which cannot be imposed by a memorandum;  instead it should follow the normal rulemaking process.  As a result, AILA argues that the Neufeld Memorandum should be set aside as a violation of the Administrative Procedures Act (APA).

The Neufeld Memorandum Definition of Employer-Employee Relationship is Incorrect

As its main argument for seeking the rescission of the Neufeld Memorandum, AILA argues that the sweeping definition of “employer” is inconsistent with the law, impedes its intent and purpose and is inconsistent with decades of precedent.  The AILA Memo then goes into great detail and legal analysis of its claim to conclude that the Neufeld Memorandum, in addition to certain recent AAO’s non-precedent decisions and the accompanying adjudications at the Service Centers that are applying these decisions to current filings seek to overturn over fifty years of consistent precedent and regulatory interpretation to categorically deny eligibility for benefits to an entire class.

Conclusion

The AILA Memorandum is a well researched and substantiated request for the rescission of the Neufeld Memorandum.  However, we do not know yet what USCIS’ position would be in response and whether USCIS will take any steps in response to this memorandum.  We will continue to provide updates on this topic as it is of great interest of our clients, readers and a large portion of the employment-based immigration community.

I-526 Premium Processing Possible Later in the Year

A review of the question of reinstating premium processing for I-526 petitions will be done during the second quarter of 2010.  USCIS will reinstate premium processing if it determines that it has sufficient resources at the California Service Center to adjudicate I-526 within the 15-calendar day window.

EB-5 Statistics

As of December 14, 2009, USCIS was able to provide only statistics for fiscal year 2009 (FY 2009).  Accordingly, in FY 2009, where were 1,028 I-526 petitions (EB-5 immigrant petition) filed, of which 966 were approved and 163 denied.   Also, in FY 2009, where were 437 I-829 (removal of condition) petitions filed of which 335 were approved and 55 denied.

Note that these numbers do not add up because not all petitions filed during FY 2009 are adjudicated during FY 2009.  Additionally, some petitions filed during FY 2008 are adjudicated during FY 2009 and are included in the numbers above.

From our daily interactions with clients, we have a number of USCIS website topics which are in need of improvement, or at the very least, discussion.  However, we wish to solicit some feedback and comments from our clients and readers.  If you have a story, comment, a complaint or a suggestion, please use our contact form to submit your comment, story or a question no later than Monday, January 25, 2010.  We will try to raise as many of those questions as we can and post the responses on our website.  Thank you!

Submit USCIS website comments and feedback.

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 December 2, 2009  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

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

Read the full AAO Processing Times report.



Mr. Oppenheim’s Comments

Although there is no guarantee that Mr. Oppenheim’s comments to AILA would turn into reality, he has been very accurate and careful in his comments in the past.

EB-3 Worldwide (ROW).  Visa numbers are expected to progress to April-August 2005.  Such movement will be gradual and is expected to start in January or February of 2010.

EB-2 China and India.  Annual limits are expected to be reached no later than May.  It is possible that otherwise unused second preference numbers to be made available.  This makes the cut-off date for both EB-2 India and China to progress to October-December 2005.

EB-3 China.  It is expected to move along with EB-3 ROW over the next few months.  The fiscal year is expected to end with a June-September 2003 cut-off.

EB-3 India.  Very slow movement expected.  There are 58,000 pending applications and it is expected to move only  up to five (5) weeks over the entire fiscal year.

Our Conclusion

While there are some good news in this announcement, it becomes clear that some categories, especially EB-3 India, become very undesirable and we strongly recommend clients and readers who are in EB-3 India to consider either filing in EB-2, if possible, given education and experience.  Many EB-3 India applicants who have been waiting for 4-5 years already find themselves facing another 4-5 year wait.  As a result, we often see second EB-2 applications using the recently gained experience filed (often by switching employers) by retaining the earlier EB-3 priority date.  Please contact us if we can help you understand whether your case may qualify.

• The NSC processed over 950,000 applications and petitions in 2009, including 250,000 cases for EADs and more than 200,000 travel documents, including Travel Documents for refugees, asylees and permanent residents.
• 252,000 cases were pending at the end of the fiscal year (September 30, 2009) just completed compared to 390,000 at the end of prior fiscal year.
• Many of the 252,000 cases now pending are I-485s that are pre-adjudicated, but are pending because of visa availability or background checks.
• All of the 140,000 immigrant visas allocated for the fiscal year just completed were used.
• The National Benefits Center (“NBC”) will be transferring I-90s to the NSC for adjudication, so attorneys can expect to see fee receipts for I-90’s with a LIN receipt number.  The volume of I-90s is expected to be around 500,000 a year.

U.S. Masters Degrees Quota Reached

USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past three weeks – as of October 30th, as of November 6th, and as of November 13th, indicate that there was a notable increase in the H-1B filings.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009.  Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009, there was an increase of 900 between October 30, 2009, and November 6, 2009 and now there was another increase of 900 H-1B visas between November 7, 2009 and November 13, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 8-9 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

Background About the Required Vaccinations

Under Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act (INA), any alien who seeks admission into the United States as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, is inadmissible into the United States if the alien is unable to present documentation of having received vaccination against “vaccine-preventable diseases, which shall include at least the following diseases: Mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, Haemophilus influenzae type B, and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee on Immunization Practices.”  Current guidance by the Center of Disease Control (“CDC”) includes the HPV vaccin to the list of vaccine-preventable diseases and is therefore required by girls and women between the ages of 11 and 26 who are seeking to become legal permanent US residents.  Those within this age range were required to get at least the first dose of the HPV vaccine, which protects against some strains of the virus blamed for cervical cancer. Additionally, the Gardasil shot was added to the vaccine list for immigrants in July 2008 by the CDC.

HPV Vaccine Requirement Controversy 

While HPV remains the single most widespread sexually transmitted disease in the country, only a small percentage of those infected with the virus will go on to develop life-threatening diseases like cervical cancer. The cost-effectiveness of the Gardasil vaccine (the HPV vaccine) remains largely in debate especially when young girls coming from a variety of foreign nationalities and cultures have to be subjected to medical exam and vaccination.  Additionally, the price of the vaccine, which is administered in three separate shots, can cost anywhere from $400 to $1000  (and the cost is often not reimbursable by insurance companies).

New CDC Guidance

Accordingly, CDC has announced a revised rule which becomes effective December 14, 2009, and under which the HPV vaccine will not be required for aliens seeking admission as an immigrant or seeking adjustment of status to that of an alien lawfully admitted for permanent residence.

In providing explanation to this change in policy, CDC recognized that genital infection with HPV is an extremely common infection due to its efficient transmission via sexual intercourse. There are approximately 6 million incident infections occurring annually in the United States. Over half of sexually active men and women will develop HPV infection at some point in their lives and 15% of all Americans have current infection with HPV.

Although there are millions of HPV infections annually, it is very difficult to distinguish those cases which resolve from those (about 10,000 per year) cases which result in cervical cancer.  Therefore, while HPV may be an age-appropriate vaccine for an immigrant applicant, HPV neither causes outbreaks nor is it associated with outbreaks (per explanation in the background section).  Further, HPV has not been eliminated, nor is in the process of elimination, in the United States. Therefore, because HPV does not meet the adopted criteria, it will not be a required vaccine for immigrant and adjustment of status to permanent residence applicants.

U.S. Masters Degrees Quota Reached

As we mentioned in last week’s H-1B visa numbers report, USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of October 30th and as of November 6th, indicate that there was a notable increase.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009.  Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009 and there was an increase of 900 between October 30, 2009, and November 6, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 9-10 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

The Post article is based on a speech made by Secretary Napolitano earlier today.  She claimed that the Obama administration has been doing much to strengthen the borders and this gives it an opportunity to move forward with a comprehensive immigration reform in early 2010.   According to the Post,

In recent years, the U.S. government has erected more than 600 miles of fencing and pedestrian barriers on the 2,000 mile border with Mexico, and more than doubled the ranks of the U.S. Border Patrol, to 20,000 officers, Napolitano said. Meanwhile, due to a shrinking job market and increased enforcement, Border Patrol arrests last year were less than half the 2005 level of 1.2 million.

While talk of the possibility of immigration reform may be welcome by some groups who have been pushing for such reform in a long time, the Obama administration and Congress have a very dense agenda over the next few months and congressional experts believe that there may not be sufficient time and/or political capital to tackle immigration reform before next year’s mid-term elections.

U.S. Masters Degrees Quota Reached

As we mentioned in our last H-1B visa numbers report, USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past two weeks – as of October 25th and as of October 30th, indicate that there was a notable increase.  As we previously reported, there was an increase of about 6,100 in the number of H-1B petitions, between September 25, 2009 and October 25, 2009 (or for the past one month).    Similarly, there was an increase of 1,000 between October 25, 2009 and October 30, 2009.  Based on our tracking of the H-1B numbers, this increase shows a notable monthly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will  be reached within 10 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

This rule becomes effective on January 4, 2010.

The article explains the decrease in the H-1B demand not only due to the economic slowdown and the corresponding decrease in hiring but also to recent anti-immigrant sentiment in Washington,

Vivek Wadhwa, a visiting scholar at the University of California at Berkeley who has studied H-1B visas, said that [the decreasing number of H-1B applications trend] has been compounded by what he sees as rising anti-immigrant sentiment in the U.S. “The best and the brightest who would normally come here are saying, ‘Why do we need to go to a country where we are not welcome, where our quality of life would be less, and we would be at the bottom of the social ladder?’” Mr. Wadhwa said.

…

[Also,] some would-be employers are put off by a crackdown on fraud. U.S. Citizenship and Immigration Services, which administers the H-1B program, has been dispatching inspectors on surprise company visits to verify that H-1B employees are performing the jobs on the terms specified. The fraud-detection unit in coming months is expected to inspect up to 20,000 companies with H-1Bs and other temporary worker visas.

However, the article also points out the value of the H-1B program to the U.S. economy,

While the number of visa holders is small compared with the U.S. work force, their contribution is huge, employers say. For example, last year 35% of Microsoft’s patent applications in the U.S. came from new inventions by visa and green-card holders, according to company general counsel Brad Smith.

Google Inc. also says that the H-1B program allowed it to tap top talent that was crucial to its development. India native Krishna Bharat, for example, joined the firm in 1999 through the H-1B program, and went on to earn several patents while at Google. He was credited by the company as being the key developer of its Google News service. Today, he holds the title of distinguished research scientist.

Read the full article here.

Summary of Findings

In summary, an estimated 12.6 million LPRS lived in the United States on January 1, 2008.  One-half obtained LPR status in 2000 or later; one-quarter became LPRs during 2005-2007.   Of the 12.6 million, an estimated 8.2 million were eligible to naturalize and become U.S. Citizens.  Between January 2006 and 2008, the LPR population grew 5 percent, and the population eligible to naturalize increased 2 percent. In general, the size of the LPR population changes less rapidly than the total legally resident population because increases in the number of persons becoming LPRs each year are offset by persons naturalizing.

Country of Birth.  Mexico was the leading country of origin of the LPR population in 2008. An estimated 3.4 million or 27 percent of LPRS came from Mexico. The next leading source country was the Philippines (0.6 million), followed by India (0.5 million), People’s Republic of China (0.5 million), and the Dominican Republic (0.4 million). Forty-three percent of LPRS in 2008 were born in one of these five countries. The 10 leading countries of origin, which also include Cuba, El Salvador, Canada, Vietnam, and the United Kingdom, represented 56 percent of the LPR population.

State of Residence.  California was the leading state of residence with an estimated 3.4 million LPRs in 2008. The next leading states of residence were New York (1.5 million), Texas (1.3 million), and Florida (1.2 million). These four states were home to 59 percent of LPRS in 2008.   The next leading states of residence were New Jersey, Illinois, Massachusetts, Washington, Virginia, and Arizona. The 10 leading states represented 76 percent of the LPR population. The leading states of residence of the estimated LPR population and population eligible to naturalize were generally the same.

The Texas Service Center has provided some assurance that they are undergoing an RFE review process starting October 2009 whereby they will inspect a portion of the outgoing EB-1A RFES for quality.  While this may be of little comfort to EB-1A petitioners already subject to an RFE, we hope that in the future the qualify and specificity of Texas Service Center RFES would improve.

To address this kind of cases, USCIS Ombudsman has provided a new procedure which may help derivative applicants.   Under the new procedure, if a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s Form I-485, an email inquiry with subject line of “Unapproved Derivative I-485″  should be submitted to cisombudsman.publicaffairs@dhs.gov with the following information:

• DHS Form 7001;
• A copy of the principal applicant’s Form I-485 approval notice;
• A copy of the Form I-485 receipt notice for the derivative; and
• Any other evidence that is pertinent to the case.

This procedure was announced on October 8, 2009, so we do not yet have opinion about its usefulness, but we hope that it provides another avenue for derivative beneficiaries to move forward with their I-485 adjustment of status application.

As a result of the announced 2007 fee increase, USCIS saw a surge in applications and hiring in 2007, ahead of a hefty increase which, for example, pushed the cost of applying for citizenship from $400 to $675.  USCIS was flooded with a record 7.7 million immigration applications in 2007 as applicants rushed to file before the new fee went into effect.  Not surprisingly, filings dropped off after the higher fee went into effect, as it has historically with other fee increases.

The resulting shortage in revenue has left USCIS struggling to find alternatives.  It is important to note that the sharp decline in immigration filings resulting from the eceonomic downturn will cause a further decrease in filings and revenues.

Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, told reporters last week in Los Angeles that USCIS is considering cutting costs, raising fees or reorienting revenue in the next two years to alleviate the revenue shortage problem.   “When one does hire additional personnel, and revenues two years later drop, one must be able to address that,” Mayorkas said.

Additionally, immigration officials are also looking to Congress for relief after requesting $206 million to pay for fees for asylum seekers and refugees and for military naturalizations.

While it is too early to know any details of any proposed USCIS fee hike, the tone of Director Mayorkas’ comments and the sharp economy-related drop in employment-based filings suggests that a USCIS fee hike is very possible.  We will continue to monitor any developments on this topic and update our clients and readers.

By law, the maximum duration of stay in any H status is six years.  As a result, if a foreign employee held one or more kinds of H status, or held L status, then the total period spent in the U.S. in all of these statuses are added together to determine how much time towards the six-year maximum remains available.

There are some limited exceptions which allows an H-1B worker to extend his or her status past the six-year maximum.   If the foreign worker’s work in the United States is seasonal or intermittent in nature, or if he or she spends six months or less per year in the U.S., then the six year limit does not apply.  More notably for H-1B workers, the foreign worker can apply for one-year incremental extensions of H-1B status if he or she has remained in status and has had a labor certification or I-140 pending for 365 days or more.  Similarly, H-1B status can be extended by three years if the employee has a I-140 approved on his or her behalf.

Recapture of Time Spent Outside

The regulations’ limit on H status to six years refers to time spent in the U.S. on H status.  As a result, time spent outside of the U.S. does not count against the six-year maximum and can be added to the validity of the H-1B petition in a process referred to as “recapture.”

There are many circumstances in which a foreign worker needs to extend his or her H-1B petition past the sixth year validity.  Often such recapture is the only way an H-1B employee can bridge the gap and become entitled to the 1- or 3-year H-1B extensions described above.

Our office handles an increasing number of H-1B recapture of time petitions.  In almost all H-1B recapture cases, the main issue is providing sufficient evidence to show that the H-1B worker was outside of the U.S. between certain dates.

Types of Evidence to Show Time Spent Outside of the U.S.

The Department of Homeland Security has an electronic system for tracking entries and exits of foreign nationals.  Unfortunately, this system is not very reliable and any request for H-1B time recapture should be submitted with clear evidence establishing that the foreign national was outside of the U.S.

The best evidence is copies of I-94 cards and passport entry/exit stamps.  However, not many people remember to make a copy of their I-94 card or passport once they enter the U.S. or when they have to surrender  their passport when obtaining a renewal passport.  We always encourage our clients to make good clear copies of passports, I-94 cards and entry/exit stamps every few months or after international trips.

If I-94 cards and/or border entry/exit stamps are not available, the government can accept any credible documents  showing that the foreign national was abroad.  Such documents can be flight tickets (or paperless ticket confirmations), hotel itineraries, or frequent flier mile statements.

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

Among the most notable AAO processing times:

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

Read the full AAO Processing Times report.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     The “Pending Employment-Based Form I-485 Report” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

 Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.