Labor Immigration Law

The Department of State has confirmed that as of January 1, 2012, the U.S. Consulate in Chennai, India will no longer accept and process immigrant visa (IV, or green card) applications.    The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for immigrant visas.

The change does not affect the substantive rules for qualifying for an immigrant visa or the underlying immigrant petitions, such as I-140 or I-130.     Applicants currently in the process of petitioning for an immigrant visa at Chennai may contact ChennaiIVU@state.gov for clarification on their status.

The U.S. Department of State has announced that all U.S. embassies and consulates will expedite the processing of F-1 student visa stamp applications to ensure that qualified foreign students are able to begin their studies on time.   According to the Department of State, the maximum wait for a student visa appointment (for all posts) is fewer than 15 days.  Foreign students can apply for their visas up to 120 days before their academic programs begin.

F-1 Stamping Remains Good (and Fast) Alternative to Change of Status from Within the U.S.

We welcome the Department of State’s commitment to issue F-1 student visas on an expedited basis within 15 days.   Our office often counsels foreign nationals who are in the U.S. and seek to commence study by switching their current valid status (H-1, H-4, L-1, among others) to F-1 student status by filing an application to change status, I-539, from within the U.S.     We routinely file a number of such applications; however, this approach is not always perfect for everybody.

Many (prospective) students must begin their F-1 status as soon as possible in order to take advantage of a number of F-1 benefits (such as work authorization) or to comply with requirements imposed by the universities (for example, grants or other funding requiring F-1 status).   Considering the I-539 application may take 3 to 4 months (sometimes even more) to be reviewed and approved, many prospective students face difficult choices — remain in the U.S. and wait for 3-4 months for an application to change status to F-1 to be approved or leave the U.S. and take the chance that an F-1 visa stamp would be promptly adjudicated by the U.S. consulate abroad.

By making sure that F-1 student visa applications at U.S. consulates are reviewed within 15 days, the Department of State makes the F-1 stamping alternative a very feasible option for those who seek to obtain F-1 status in the U.S. on a short term or for those first-time foreign students who may be aiming to commence school on a short notice.

Conclusion

As we counsel a number of current and prospective F-1 foreign students, we welcome the Department of State’s announcement of expedited processing of F-1 student visa stamps at consulates abroad.    This announcement not only confirms the U.S. commitment to allowing foreign students to come and study into the U.S. but also provides a (relatively) fast option for those foreign nationals in the U.S. who need F-1 status but are not able to wait for the 3-4 month required to change status from within the U.S.

Please do not hesitate to contact us if we can provide any consultation or if we can be of any assistance.

The Department of State (DOS) has announced that effective December 1, 2011, the U.S. Consulate in Chennai will become the only acceptance center in India for all applications for intra-company transfers under the blanket L category.

The U.S. Embassy in New Delhi and U.S. Consulates in Mumbai, Kolkata and Hyderabad will no longer accept or process applications for this visa category.  The blanket L category includes specialized knowledge professionals, executives and managers.

All other visa processing procedures remain unchanged.  Spouse and children visas (L2) and individual L visas (L1B and L1A individuals) which continue to be processed at all posts in India—Chennai, Hyderabad, Kolkata, Mumbai, and New Delhi.

The Department of State has announced that as of August 26, 2011, the U.S. Consulate in Mumbai would resume processing of H and L visa stamp applications.   The earliest appointments available were for September 6, 2011 and as of today, the Consulate is in normal processing mode.

Earlier this year, in March, the Mumbai Consulate suspend all H and L visa stamp processing due to aging infrastructure.   We are delighted to see that the Mumbai Consulate is now able to process H and L visa stamp applications on a regular basis.

Please see the Mumbai Consulate page for more information and details on scheduling an appointment.   Also, please do not hesitate to contact us if we can be of any assistance in preparing and filing H or L visa stamp applications at the Mumbai or other Consular sections.

The Department of State (“DOS”), in an “urgent” alert dated as of September 15, 2011, has advised that due to heavy demand in the employment-based immigrant visa categories, DOS has reached the Fiscal Year 2011 annual limit of employment-based green cards.

DOS/USCIS to Stop Approving EB Immigrant Visas Until October 1

As a result of reaching the annual EB visa number limit, DOS has stopped approving immigrant visas in all of the employment-based categories.   Employment-based immigrant visas at U.S. Consular Posts are being held or returned to applicants for resubmission on or after October 1.

Similarly, DOS has advised USCIS that due to reaching the quota, no new I-485 adjustment of status applications would be approved for the remainder of the fiscal year (which ends on September 30, 2011).    There may be a limited number of I-485 approvals between now and October 1 but such approvals are based not on changes in the availability of visa numbers, but due to the fact that some I-485 cases have had their visa number already requested, authorized and allocated under the FY2011 limit.

Conclusion

Some of our clients and readers have already experienced returned passports by US Consular section around the world with notations indicating that they should resubmit their application on or after October 1 once the numbers become available again.     As a result of this memo to USCIS, we expect that the number of I-485 approvals for EB cases for the remainder of the month of September to drop to close to zero.

The good news is that after October 1, and in accordance with the October 2011 Visa Bulletin, normal employment-based immigrant visa processing would resume.    Please do not hesitate to contact us if we can be of any assistance and please feel free to subscribe to our weekly immigration newsletter to obtain related news and developments.

The Department of State has enabled the Status Check website which allows participants in the “green card lottery” to check whether their entry has been selected.   At the same time, we wish to note that the Department of State does not notify winners by email so any email notifying of a winning green card lottery entry and asking for payments is likely fraudulent.

DV-2012 Lottery Glitches

Many of our readers are aware of the glitches and the controversy surrounding this year’s DV lottery.   In May, the Department of State issued a statement that they are voiding all DV-2012 lottery results due to a computer glitch which caused the winning entries to be picked in a non-random fashion.   By the time the results were voided, many who thought they were “winners” were sorely disappointed by the outcome.  A lawsuit challenging the Department of State was filed seeking to have the initial results certified as valid.

The Department of State pressed ahead with their plans to redo the DV-2012 lottery in mid-July.   After the lawsuit was dismissed earlier this month, and after the Department of State ran the lottery again (presumably correctly and randomly this time), the results are now available.

Conclusion

We wish to congratulate those who have been selected for the DV lottery this year.   At the same time, we wish to remind these winners that they should follow the application instructions very closely and promptly because the number of winning entries is higher than the actual number of green cards available; as a result, not all winners actually receive a green card.   Timing and following the proper procedures becomes important.

Our office stands ready to assist in the preparation of the documents, either with the National Visa Center or with US Citizenship and Immigration Service for those green card lottery winners.   If you wish to discuss how we can help, please contact us.

USCIS has just announced that they are launching a new website which is intended to provide new data reports covering agency performance in a number of areas.   The website can be accessed at http://www.uscis.gov/data/.

Data Reports Available

Currently, there are ten data sets available on the website.    Four of the data sets will be updated monthly; they include processing times and performance data for Form N-400, Application for Naturalization; performance data for Form I-485, Application to Register Permanent Residence or Adjust Status; and statistics on Form I-914, Application for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant Status. Forms I-914(T) and I-918(U) are used for victims of trafficking and victims of crime.

Additionally, information about the total number of receipts and approvals by quarter and year-to-date for all form types will be published quarterly.

Conclusion

While we applaud USCIS’s efforts to provide more information and transparency to the general public, and while we recognize that this website makes an initial step towards giving the general public an overview of USCIS’s operations, the information published on the website is somewhat limited in scope.   We hope that USCIS would use this website as an opportunity to provide more information about its operations, processing times and procedures.

Important Update: April 9, 2011: Short-term Government Funding Bill Passed.

As it appears as of the time of this article, the U.S. federal government is likely to shut down, we would like to provide some information as to how the shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on Monday if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”

Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue

The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad.  As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed).   U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.

As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995,  approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.

It is unknown at this point, however, whether the May 2011 Visa Bulletin, which is expected to be issued over the next few days and which is issued by the Department of State, will be affected.   We hope that it would be released before Monday when a possible shutdown would take effect.   Many of our readers are eagerly expecting the May 2011 Visa Bulletin because it is expected to bring some substantial forward movement to the EB-2 India category.

With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.

Department of Labor – LCA, PERM and Audits

It is unclear exactly how the Department of Labor would be affected.   We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected.  This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.

ETA Form 9089 PERM labor certifications are expected to be similarly affected.  It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown.  This holds true for processing of PERM audits and appeals at the BALCA.

Conclusion

While the full extent of the federal government shutdown (if it were to happen over the next day or two) is unknown; we can anticipate some disruptions to government services affecting immigrants.  Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  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.

The Kentucky Consular Center (KCC) is a centralized processing facility for petition-based nonimmigrant visa programs and for the Diversity Visa program (also known as “green card lottery”).  Located in Williamsburg, Kentucky, KCC serves a variety of important functions affecting many visa applicants and foreign nationals who are selected under the Diversity Visa lotttery.  There are 300 employees, of which 97% are under private contracts.

Processing Statistics

For the Diversity Visa program, KCC processes approximately 100,000 selectees every year to ensure that all of the 55,000 allocated immigrant visa numbers are properly allocated.  KCC also receives 12,000 I-129 nonimmigrant visa petitions each week from USCIS and processes them for U.S. consular posts around the world.

Fraud Prevention Unit (FPU)

As part of its processing tasks, KCC houses the Fraud Prevention Unit which creates base files for petitioners and researches petitioner information in connection with visa stamp applications.   The purpose of the FPU is to allow the government to research the petitioner in more depth from within the U.S.  Often a U.S. consular post is not able (logistically or otherwise) to do proper petitioner research; as a result, the FPU allows such petitioner research or verification tasks to be conducted from within the U.S.

As part of its duties, the FPU could contact the petitioner directly to ask questions, or if an end-client is involved in the employment arrangement (such as with many IT consulting companies), the FPU could contact the end-client directly. The FPU researchers will identify themselves – they do not make pretext calls to gain information.    The researcher creates a memo regarding the information obtained, which is entered into the FPU database. Normally there is no need to research the same petitioner multiple times, in the absence of some particular need to do so.

The trigger for FPU review is either random (reportedly about 1% of all records) or upon specific request by a consular post.   Normally, electronic records are created from I-129 records for all petitioners whose petitions are processed by KCC.   All petitioners are verified and minimum research is conducted to verify the petitioner’s existence.  A more in-depth petitioner existence review is conducted randomly or upon consular post request.

Training in the FPU is category-specific. Researchers are trained on industries, company size and other factors. Agents in the FPU receive an overiew of all petition-based NIV categories;  however, they normally specialize regionally. Currently, there are two teams-India and Global (all non-Indian posts).

Petition Information Management Service (PIMS)

The PIMS system allows consular posts to obtain petition information in connection with visa applications (most often by the beneficiary of the petition).   KCC acts as the central processing facility of petitions processed by USCIS.  Normally, USCIS sends petitions to KCC’s PIMS systemwhich are then scanned and made available to consulates around the world in the PIMS system.

In the normal course of processing, KCC receives boxes of files from USCIS and electronically tracks them based on the USCIS barcodes on the files as they are received. I-129 petitions are scanned, 55 fields are entered for data capture, a petitioner is assigned, a quality control check is conducted, and then the hard copy is shredded.

KCC reports that it has processed 65,000 consular PIMS inquiries in FY2009 and 48,000 in FY2010. For the vast majority of these inquiries, sufficient information is in CLAIMS for KCC to update PIMS within 24 hours.  KCC’s PIMS processing completion target times for entry into the system are: COB the next day for “expedited petitions” (which do not necessarily include premium processing), 3 working days for O, P, T and U petitions, 5 working days for other petitions and for revocation/CIS notices, and 10 working days for any other extension or change of status petitions.  The processing time for USCIS affirmations of petitions returned by the consulate with a revocation recommendation is within 5 days.

The Department of State announced yesterday that effective March 3, 2011, the U.S. consulate in Mumbai, India would limit the number of applicants it can process due to the building’s aging infrastructure.  While a new multi-million dollar facility is under construction (scheduled to open later this year), the current facility of the consulate seems incapable of handling the current number of visa interviews.

As a result, the consulate would not accept new H or L visa stamp application appointments.  H and L visa stamp applicants are urged to schedule appointments at the other U.S. consulates in India.  Appointments can be scheduled through VFS.  Note: H and L appointments which are already scheduled would be honored and processed.