Labor Immigration Law

The Department of State (DOS) announced recently that it is changing the procedure for K-3 (spouse) visa applications filed at U.S. consulates abroad.

The procedure is effective February 1, 2010, and applies in cases where the I-130 immigrant petition and the I-129F K-3 petitions are both approved and sent to the National Visa Center (NVC).  In such instances, DOS will administratively close the K-3 application and will proceed instead only with the immigrant visa application based on immediate relative category (IR).

Background of K-3

The K-3 visa allows the foreign spouse of a U.S. citizen (and his or her dependents) to be admitted into the U.S. while they are waiting for their permanent residency application to be completed.  K-3 visa also allows the foreign spouse to engage in employment in the U.S. while waiting for approval of the green card.

The K-3 visa requires the filing of an I-130 and I-129F petitions with USCIS.  In terms of timing, the I-130 and I-129F are filed almost at the same time.  Generally, the I-129F K-3 petition is approved slightly before the I-130 and, in such cases, the foreign spouse can apply for the K-3 visa stamp and travel to the U.S.

The New K-3 Policy

However, in some cases the I-130 and the I-129F are approved at the same time.   In such cases, the foreign spouse faces the (not always so clear) choice of applying for K-3 visa or green card at the U.S. consulate.  This is the kind of situation the new DOS policy is intended to address and prevent any confusion.  Under the new policy, when the I-130 and I-129F are approved at the same time and received by NVC, NVC will, on its own, administratively close the I-129F K-3 application process.  NVC will contact the applicant with instructions on how to process the IR green card process.

According to DOS, the rationale behind this procedure is that the need of the K-3 visa ends once the green card I-130 petition is approved because the foreign spouse would be entitled to apply for green card immediately.   Our past experience has confirmed this — when a foreign spouse has to choose between K-3 or green card, the choice is confusing and counterintuitive.

An important note: the new procedure applies only when NVC has received both the approved I-129F and I-130 petitions.  If NVC receives only the approved I-129F petition, the foreign spouse can apply for the K-3 visa while the I-130 remains pending.   In this case, NVC will send the petition to the embassy or consulate in the country where the marriage took place or, if the marriage took place in the U.S., to the embassy or consulate that issues visas in the foreign spouse’s country of nationality.

Our office has handled many cases where a specific USCIS benefit or application must be approved on an expedited basis.  Also, we have received numerous inquiries from applicants who seek to expedite the processing of a pending application due to long processing times.

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 National Visa Center (NVC) has released numbers and statistics on the immigrant visa numbers pending at NVC.   The information is as of November 1, 2009.  It is important to note that these numbers reflect immigrant visas which have chosen “consular processing” and not adjustment of status (I-485) applications filed from within the U.S.  Also, the numbers reflect all applicants, including derivative beneficiaries such as spouses and children.

Overall Pending Immigrant Visa

Family-based.  As of November 1, 2009, there are 245,516 family-based first preference category applications pending; 842,762 second category (324,864 in 2A and 517,898 in 2B sub-category); 553,280 in third category; and 1,727,897 in fourth category.  The total family-based NVC pending cases are 3,369,455.

Employment-based.   As of November 1, 2009, there are 3,601 employment-based first preference category applications pending; 6,295 second category; 119,759 in third category (103,448 in skilled workers and 16,311 in other workers sub-category); 529 in fourth category; and 325 in fifth category.  The total employment-based NVC pending cases are 130,509.

Distribution by Country

Thirteen countries represent 79% of the total NVC pending immigrant petitions.  Mexico is number one with 1,178,761 cases (most of which are family-based);  Philippines is second with 482,694, China-mainland is third with 197,559, while India is fourth with 194,954.

Please see the full report for more detailed statistics.  It is important to note that the annual FY-2010 maximum of family-based immigrant visas issued for any one country is 15,820.  The maximum employment-based immigrant visas issued for any country is 10,440.

Our office receives a fair number of Section 221(g) inquiries from visa applicants at a U.S. Consulate abroad.   This article aims to explain Section 221(g) and to provide some tips for dealing with a 221(g) visa refusal.

About Section 221(g)

Section 221(g) of the Immigration and Nationality Act (INA)  provides for temporary refusal of visa when an otherwise qualified visa applicant is found to be lacking a specific document, or when a consular officer determines that additional “security clearance” is appropriate and needed.  Consular officers mainly use 221(g) as a way of giving the visa applicant another opportunity to supplement their applications in order to address concerns or deficiencies in the initial application.   Once the deficiency is addressed, the 221(g) refusal is “overcome” and the visa may be issued.

Reasons for 221(g) Refusals

There are several reasons for issuing a 221(g) refusal.  Among the most common are:

• The applicant is asked to provide additional supporting documents, such as proof of employment.
• The applicant is employed in a field listed on the Technology Alert List (TAL) and the consular officer requests a Visas Mantis Security Advisory Opinion.   This is one of the most common reasons for issuing 221(g) to applicants in India, China and elsewhere where the applicants are told that their application requires “administrative processing.”
• The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the grounds of inadmissibility.
• There are no empty visa pages in the applicant’s passport, or the application photo does not meet the requirements.
• The applicant’s petition approval is not yet listed in PIMS.

Section 221(g) Refusals Are Very Common

The Department of State has acknowledged that 221(g) refusals happen too often and may be subject to overuse.  According to the Visa Office, in fiscal year 2008,  there were 589,418 nonimmigrant visa refusals under 221(g).  Of those, 510,549 were successfully overcome and visas issued – a success rate of 87%.

Section 221(g) Impact on Future Applications

Since Section 221(g) is technically a refusal, our office often is asked whether a 221(g) should be disclosed on future visa applications, or, in the case of Visa Waiver Program travelers, on their electronic registration forms.

The answer is that 221(g) is a refusal and the applicant, in a subsequent visa application, must answer “YES” to the question “Have you ever been refused a U.S. visa?” on Form DS-156 or DS-160.   This applies even if the 221(g) refusal is based on something as innocent as lack of information in the PIMS database.   Of course, after disclosing YES, on this question in a subsequent visa application, the applicant should be prepared to explain the circumstances of the 221(g) refusal.

Similarly, Visa Waiver Program travelers,  must disclose any 221(g) refusals in their ESTA forms.  We wrote about this topic earlier in November 2009.

Help With 221(g) Refusals

Despite the reason of the 221(g) refusal, we urge applicants who are issued a 221(g) to contact an immigration attorney to better understand the reasons for the 221(g) refusal and to evaluate their case for options and alternatives.  Often, we are in a position to explain the deficiency and help an applicant take steps to address it, either by preparing additional documents or by explaining the circumstances directly to the consular officer who issued the 221(g).  Please contact us if you received a 221(g) and need assistance with your application.

We have reported previously on the Department of State’s (DOS) efforts to introduce an electronic form (DS-160) for submitting nonimmigrant visa (NIV) application at its consulates around the world.   The goal is to have DS-160 replace the paper forms currently used for NIV applications at all U.S. consulates.

The DS-160 online NIV application form is being used at this time at the following U.S. consulates (said to represent about 10% of all NIV applications) –  Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica).   In a recent cable, DOS has indicated that it would hold off on adding additional consulates to the DS-160 list until it can add additional server capacity to ensure that all electronic applications can be handled efficiently.   More information by DOS can be found here.

It is important for all nonimmigrant visa applicants to verify the requirements of the U.S. consulate where they intend to apply for NIV visa and establish whether they must use paper or online application forms.  Checking-in with the local U.S. consulate also allows the applicant to become familiar with the exact rules, procedures and requirements imposed at that particular U.S. consulate.

We have been informed by USCIS that some legal permanent residency (“green card”) applicants may experience an eight-week delay in receiving their green card.    The stated reason is that USCIS is upgrading its card production equipment.

For applicants who need to obtain evidence of their permanent residency, the local USCIS offices can issue temporary Form I-551 stamps at an Infopass interview.

We have received some general updates from the Nebraska Service Center (NSC) and we would like to share them with you as they provide some useful insight into NSC’s operations:

Backlog.  The net overall backlog at the end of first quarter of FY2009 was 250,000 cases; reduced to 87,500 cases by the end of the 2nd quarter of FY2009.  NSC expects that by June 2009 there would be no case backlog.  Additionally, the I-140 backlog was 40,000 in October 2008, as of May 2009 it is down to 10,000.

Receipts.  There has been a notable decrease in receipts in new cases.  There were 80,000 issued in October 2008 while there were less than 40,000 receipts issued in January 2009.  There has been a slight increase since January to about 50,000 receipts per month.  Since receipts have decreased, the adjudicators have been able to catch up and even review cases from other centers.  NSC has been reviewing I-130 from the California Service Center and some standalone I-140s from the Texas Service Center to help reduce the national backlog.

Preadjudicating I-485s.  The EB-485 at NSC has been “pre-adjudicating” cases to try and have them done but-for the priority date being current.  This means that it is possible to obtain RFEs or NOIDs on cases which do not have current priority dates.

We have been receiving a number of inquiries from prospective clients who are interested in switching to F-1 student visa status using a Form I-20  issued by a English as Second Language (“ESL”) school or a community college.   In our experience, USCIS (if the change of status is requested from within the U.S.) or the Department of State (if the visa application is filed at a consulate abroad) have been very critical towards applicants admitted to attend ESL or a community college in the U.S.

We have seen USCIS deny change of status to F-1 applications on seemingly due to the lesser-known name of the college.  Similarly, U.S. consulates abroad have been denying F-1 visa applications where the foreign student wishes to study at a lesser-known college.  In a specific response to these situations, the Department of State has issued a note which is aimed to remind consular officers that “attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must establish that he/she has a plan for his/her education.”

What this means is that the F-1 visa or change of status applicant must show an educational plan which may include an ESL or a community college but which must, at some point, indicate that the student would transfer to a four-year college or another more advanced school.  According to the Department of State, “a plan that includes initial attendance at a community college or English language program, and then a transfer to a four-year college, certainly is acceptable. Which school a student chooses is not nearly as important as why he/she chose it.”

Considering this guidance, it becomes even more important for the F-1 applicant to be able to tell a story and present an educational plan as part of his or her F-1 visa application process.  This educational plan must be as detailed as possible and must present a clear picture of the applicant’s educational goals and where and how they would be achieved.  Please contact us if we can help you prepare your F-1 visa application.

We have experienced difficulty in obtaining case status information from the USCIS Online Status system – the difficulties are sometimes related to new cases not being timely reflected into the system or slow updates of case status on pending cases.   We have also heard a number of complaints from clients and readers that they have experienced similar delays.

The National Benefits Center (NBC) Liaison Committee has confirmed that a problem with the interface tool for the “Case Status Online” has caused delays in the entry of new receipt numbers into the system and in the updating of status information for filings already in the system. The problem, which is not limited to NBC filings, has been recurring and, unfortunately, USCIS has not provided a time estimate as to when the interface tool will be fixed.

The USCIS has provided an updated chart of its processing time goals and the current progress towards meeting these goals.  The report also provides a very useful update on the current average processing times for certain petitions and the number of petitions in backlog status.

The goals are intended to be met  by the end of Fiscal Year 2009 (FY2009) which ends on September 30, 2009.  There are many goals which are met (indicated in blue on the chart) but there are many goals, in some very popular categories which (in our opinion, which is based on demand and on our experience) may not be met by September 30th.

Below we provide a brief analysis and comments on some of the more popular petition types.

• I-130 family-based immigrant petitions currently take an average of 6.2 months (goal is 5 months) with a backlog of ~60,000 cases;
• I-129 fiancee petitions currently take an average of 6.1 months (goal is 5 months) with a backlog of ~5,000 cases;
• I-131 reentry permit applications currently take an average of 3 months (goal is 3 months) and no backlog;
• N-400 naturalization petitions currently take an average of 8.4 months (goal is 5 months) with a backlog of ~75,000 petitions;
• I-129 temporary worker petitions currently take an average of 2 months (goal is 2 months) and no backlog;
• I-140 employment-based immigrant petitions currently take an average 9 months (goal is 4 months) with a backlog of ~31,000 cases;
• I-539 applications to change status currently take an average of 2.6 months (goal is 2.5) months with a backlog of ~1,000 cases;
• I-485 employment-based adjustment of status applications processing times are not provided (goal is 4 months) but the backlog is a significant ~221,000 cases;
• I-485 family-based adjustment of status applications take an average of 7.3 months (goal is 4 months) with a backlog of ~80,000 cases;
• I-131 advance parole and I-765 EAD applications take an average of 3 months (goal is 3 months); and
• FOIA requests take an average of 20 business days (goal is 20 business days) with a backlog of ~56,000 cases.

We will continue monitoring USCIS’s processing time goals and provide updates on trends.   While we remain skeptical that USCIS will be able to meet these goals by the end of FY2009 on September 30th, we see encouraging signs of improvement in many case categories.