Immigration Briefs

EB-2 Backlogs for All Countries as of December 1, 2022

The December 2022 Visa Bulletin was released today. In the new bulletin, the Department of State has determined that the EB-2 category needs to be backlogged somewhat because of demand. As a reminder, the EB-2 category includes employer-sponsored applications for positions that require an Advanced Degree (Master’s or higher degree) as well as the National Interest Waiver (NIW) self-sponsored applications.

As of December 1, 2022, the FINAL ACTION DATE for all EB-2 cases will be November 1, 2022. This means that only those I-140 EB-2 applications filed prior to November 1, 2022, would be able to have their Adjustment of Status application (I-485) approved (assuming that you had already filed the adjustment of status before December 1, 2022).

As of December 1, 2022, the DATE FOR FILING will be December 1, 2022. USCIS has indicated that it is using the Dates for Filing in December – this means as long as you filed the I-140 before December 1, 2022, you can file your I-485 at that point. However, every month USCIS re-looks at which table it should use to determine filing dates. USCIS decides between allowing people to file the I-485 based upon the Dates for Filing OR the Final Action Dates, and we do not know, as of yet, if, after December, USCIS will continue to use Dates for Filing or not. We will update you as we find out.

The above means that, as of December 2, 2022, there will no longer be ANY concurrent filing of the I-140 NIW and the I-485 allowed. This applies to everyone, regardless of where you were born, and this is a major change for everyone on very short notice. Please contact us if you need more information or help to file quickly.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

Immigration, Points and Canada – Would a Canadian-like System work in the US?

Forbes recently published an excellent article looking at efforts to reform the US Immigration system and make it more like the Canadian system. For those who are not familiar with the Canadian system, they have a point-based system designed to bring in those with skills needed in Canada. In addition, Canada has steadily been INCREASING the number of immigrants it allows in, from 405,000 this year to 500,000 in 2025. They project that 100% of their labor force growth in Canada has come from Immigration.

In the US, Senator Tom Cotton, a Republican from Arizona, proposed changing the US System into a point-based system as well. There are several issues with his proposal, however.

First, unlike Canada, we have a divided Executive and Legislative branch. Why is this important? Because, any changes to such a point system would require the Legislative branch to change the law, which is a slow and cumbersome process. While it is possible to make the system adaptable by the Executive branch, it is hard to imagine that either the Democrats or Republicans would agree to this. Unfortunately, both sides would be afraid that if the other side controlled the Executive branch, they would use such flexibility to either limit immigration or expand immigration. In Canada, having a parliamentarian system, they can affect changes to the point system quite quickly in order to reflect what is happening in Canada and the world. According to the article:

While Canada’s structure allows for relatively quick adjustments in point criteria, that is unlikely to happen in the United States. Instead, Congress would pass a law and set qualifications that might not change for decades. Ceding greater authority to an immigration bureaucracy would be unlikely to work, since it can take many years for a federal agency to enact a regulation and enact changes.

In Canada, (permanent) immigrants for employers often first work for Canadian employers on temporary visas, similar to the U.S. transition from H-1B status to an employment-based green card. The difference is that Canada awards points for age, language, schooling and work experience in Canada and grants permanent residence each year to those who achieve sufficient points. The system has evolved and been adjusted so that employers can retain highly skilled employees. Another key feature: Canada allows provinces to select immigrants based on unique regional needs, something U.S. point system advocates generally have not favored.
Stuart Anderson, Forbes Magazine

Secondly, the Act proposed by Senator Cotton would also eliminate Family-based immigration, thereby lowering immigration overall. This lowering of immigration would not, as Senator Cotton has stated, spur economic growth. It would, in fact, do the opposite.

Cotton and Purdue made what economists would consider a contradictory argument for their bill. The senators argued their legislation would “spur economic growth” while “reducing overall immigration by half.” However, reducing immigration would lead to lower economic growth, not “spur” it. Joel Prakken, senior managing director and co-founder of Macroeconomic Advisers, estimated a 50% reduction in legal immigration would lead U.S. economic growth to decline by 12.5% from its projected levels.
Stuart Anderson, Forbes Magazine

As reported in previous blog posts, this is supported by multiple studies as well. Immigration is one of the driving factors of our economy, and growing our labor pool is one sure way of growing our economy overall.

Overall, it would be ill-advised for the US to move towards such a system, as our government is not as quick and flexible in changing laws as the system in Canada. In addition, the act pushed by Senator Cotton would hurt our economy, which is already in pain. The Senator would be better off listening to economists and working on ways to improve our current system and increase immigration so that we can help our economy grow. Increasing the number of employment-based green cards and H-1B visas would be one way to affect such a change.

For the full article, please go to: This Link

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Attention Students: US Department of Education withdraws certification of ACICS as an accrediting institution

On August 19, 2022, the Department of Education announced that it would no longer recognize the “Accrediting Council for Independent Colleges and Schools” (ACICS) as an accrediting agency.

This will affect Immigrants in several ways, depending on where they are in their course of study.

First, for those still in school, either an English Language Program or a University or College program, these schools formerly accredited by ACICS will no longer be able to process extensions of status, and students will only be allowed to finish their current session IF the school voluntarily withdraws its certification or allows SEVP to remove it. HOWEVER, if the school can provide evidence of an ED-recognized accreditation or evidence in lieu of accreditation within that allotted timeframe, all students may remain at the school and complete their course of study.

Second, for those students seeking a STEM extension, because the school must be accredited at the time the DSO signs the eligibility for the STEM extension on the I-20, only cases that have been filed in which the DSO signed the I-20 before August 19, 2022 will be approved. Those who applied after that day who are at schools formerly accredited by ACICS will be denied, and the student will only have a 60-day grace period in which to fix their status or leave the US.

Third, for those students who have already graduated, as the school has lost its accreditation (assuming it had no other accreditations), the degree is no longer considered a valid US Degree for either H-1B advanced degree purposes or for purposes of the EB-2 Advanced Degree category. However, according to USCIS, this will ONLY apply to degrees issued on or after August 19, 2022 – degrees issued before that date, while the College was still accredited, will still be valid for these applications.

Lastly, if the College has no other accreditation, it would also not qualify under the H-1B cap exemption for institutes of higher education; it would no longer be able to file for such cap-exempt H-1Bs (nor would it be exempt from the ACWIA fee either).

This move by the Department of Education dramatically impacts immigrants, especially those in F-1 status currently and, because of its immediacy, it is something you should take action on immediately if you are one of those affected. If you wish to search to see if your school was impacted (although you should be getting a notice from SEVIS), you can use this website to do so: http://personify.acics.org/Default.aspx?TabID=204.

Please contact us with any questions or if you were affected by this de-certification and need assistance maintaining your status.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

EB-2 Worldwide Numbers May Become Backlogged In The Coming Months

The Department of State, in the November 2022 Visa Bulletin, included the following in its list of possible future changes in the visa bulletin:

Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Unfortunately, this means it is very likely that the EB-2 category (which includes employer-sponsored immigrant visas for those with a Master’s Degree or higher and those filing a National Interest Waiver) will backlog in the coming months. We do not know precisely when, and most likely, it will not be until the beginning of next calendar year, but we will have to keep a close eye on the visa bulletin in the coming months.

One point of interest is that DOS indicates that the “final action date” may retrogress. This could mean that the “dates for filing” date could remain current. It would then be up to USCIS to determine which dates they will use to allow the filing of the I-485. For those who may not remember, or be familiar with, the different dates used by the DOS: The “final action dates” table lists the dates for each immigrant visa type for which an immigrant visa is available (this date needs to be current for the I-485 or consular processing case to be approved); The “dates for filing” table lists the dates for each immigrant visa type for which the Department of State thinks that the “final action date” will be at within the next 6-12 months (it is the table used by the Department of State to determine when to begin the consular processing part for each case type). Each month USCIS indicates which table it will use to determine if a potential immigrant can file an I-485 application in a particular immigrant visa category.

If the EB-2 Worldwide numbers do retrogress (and remember, right now, this is just a warning from DOS, not a sure thing), it would also have an impact on the EB-2 numbers for China and India, considering that they will not be able to use any unused numbers from the worldwide visa numbers to help keep those dates where they are, or progress them. It may mean that those countries’ dates retrogress even further.

Those looking at filing an I-485 based on their EB-2 filing or approval should do so as soon as possible to ensure that they will not be locked out of filing the I-485 by retrogression. If you have questions or would like to set up an appointment with us to discuss the filing of the I-485 in your case, please use the following link: https://bit.ly/3NwfebH

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Third Phase of Premium Processing Expansion Underway

On September 15, 2022, USCIS launched the third phase of expanding its premium processing service. For those who do not recall, premium processing allows you to pay USCIS more money for them to process your case faster than usual. Premium processing is only available for certain cases and, until earlier this year, was NOT available for the National Interest Waiver cases (EB-2) or the Multinational Executive and Manager category (EB-13).

The first phase expanded premium processing first to EB-13 cases on June 1, 2022 (only for EB-13 cases filed on or before January 1, 2021), then to EB-2 NIW cases on July 1, 2022 (only to EB-2 cases filed on or before June 1, 2021) as well as expanding the EB-13 cases covered to those filed on or before March 1, 2021.

Phase 2 started on August 1, 2021, and expanded the NIW cases allowed to use premium processing to those filed on or before August 1, 2021, and for EB-13 cases, to those filed on or before July 1, 2021. Small changes, but at least forward movement consistently.

Phase 3 began as of September 15, 2022, and saw expansion to NIW cases filed on or before February 1, 2022, and to EB-13 cases filed on or before January 1, 2022. This seven-month jump was a much more significant jump in terms of cases allowed and hopefully means we may be close to full implementation of premium for these cases (meaning that you can ask for a case you are currently filing to use premium processing). In addition, we are still waiting to hear when USCIS will allow premium processing for other benefits, such as I-765 Applications for Work Authorization.

Before anyone rushes out to use premium processing, there are a few things to remember. First, it is an additional $2500 fee to use premium for any I-140 application. Second, premium processing is not always a smart thing to use. Premium processing has been available for the EB-1A extraordinary ability application for many years now. While usually, that process is ok to use and the result of the application (approval, denial, whether a request for evidence is issued) is the same as using the normal process, there are times when that is not the case. In fact, for about a year now, premium cases for extraordinary ability applications have been very uneven. Some officers send out requests for evidence and denials on such cases at a much higher rate than usual, but not all officers. This type of behavior leads to extremely varied outcomes for similar cases. And this happened previously several years ago as well. It usually straightens itself out over time but then, at some point, pops up again.

Unfortunately, because premium processing for National Interest Waiver cases has been around for a very short period, we do not have a clear idea if it will affect those cases similarly. It may be wise for people with less-than-ideal cases to not use premium until more information is available and we have a better idea of how cases are adjudicated. For those with long pending, solid cases, however, this may be helpful to get your case adjudicated quicker.

If you wish to utilize premium on your currently pending case, please use the following link to set up an appointment so we can discuss your case: https://bit.ly/3tx5pBh.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Second Phase of Premium Processing Expansion to begin August 1, 2022

USCIS will be implementing the second phase of its planned expansion of its premium processing service starting August 1, 2022. For those who are unaware, Premium processing is a service provided by USCIS that allows you to pay an extra fee to get your application adjudicated quicker (in many cases within 15 business days, but some may be 2 or 3 months). While this service is currently available for most I-140s and certain I-129 applications, it’s not available for all statuses as of yet.

Phase 1 of the expansion allowed those with an EB-1C, Application for Intracompany transferee pending one or before January 1, 2021, and those with an EB-2 National Interest Waiver application filed on or before June 1, 2021, to utilize premium processing – this phase began on June 1, 2022, for EB-1C applications and July 1, 2022, for EB-2 NIW cases.

Phase 2 will begin on August 1, 2022, and will allow those with an EB-1C application filed on or before June 1, 2021, and those with an EB-2 NIW filed on or before August 1, 2022, to utilize premium processing.

Hopefully, USCIS will begin moving a little quicker on its implementation of premium processing in the near future. We will update you as USCIS updates us.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Gives Implementation Date for Some Expansion of Premium Processing

Today USCIS announced implementation dates for the expansion of premium processing to the EB-2 NIW and EB-1 Multinational Professional categories. However, before giving the implementation date, it is important to remember that this will ONLY apply to EB-2 NIW filed with USCIS BEFORE June 1, 2021, and EB-1C cases filed with USICS BEFORE January 1, 2021.

USCIS will expand premium to the above eligible EB-1C cases on June 1, 2022 and to the above eligible EB-2 NIW cases on July 1, 2022.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Breaking: USCIS extends automatic extension of EADs from 180 days to 540 days

USCIS will issue a temporary final rule providing that the automatic extension period applicable to expiring EADs for certain renewal applicants who have filed Form I-765 will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs.

This increase will be available to eligible renewal applicants (all renewal applicants who could take advantage of the 180 day period can also take advantage of the new 540 day period) with pending Forms I-765 as of 5/4/22, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after 5/4/22, and ending 10/26/23. The temporary final rule will be published in the Federal Register on 5/4/22. Comments will be accepted through 7/5/22.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

May 2022 Visa Bulletin Released – Not Much Movement

The biggest take away from this months Visa Bulletin is that there was little, if any movement for any category, except some forward movement for India EB–2 cases. See Below for details.

Family Based Visa Dates

FB1 – Adult Children (unmarried) of US Citizens: This category stayed at Dec 1, 2014 for All Other Areas, China and India. It stayed at January 1, 2000 for Mexico and March 1, 2012 for the Philippines

FB2A– Spouses and children of US Permanent Residents: This category remained current for all areas of the world.

FB2B – Adult Children (unmarried) of US Permanent Residents: This category stayed at September 22, 2015 for All Other Areas, India and China. It stayed at January 1, 2001 for Mexico and October 22, 2011 for the Philippines.

FB3 – Adult Children (married) of US Citizens: This category stayed at November 22, 2008 for All other Areas, China and India. It stayed at September 15, 1997 for Mexico and at June 8 2002 for the Philippines.

FB4 – Siblings of US Citizens: This category stayed at March 22, 2007 for All Other Areas, China and India. It stayed at January 1, 2000 for Mexico and at August 22, 2002 for the Philippines

Employment Based Visa Dates

EB–1: Remained Current for the entire world

EB–2: The Final Action Dates remained Current for Everywhere, and remained at March 1, 2019 for China. The final action date progressed from July 8, 2013 to September 1, 2013 for India. The Dates for Filing (which may be used) for China remained at April 1, 2019 for China and progressed from September 1, 2014 to December 1, 2014 for India. Despite the fears that India may retrogress, India, in fact, moved its dates forward. However, this category could retrogress for India at any time.

EB–3: For Final Action Dates, there was no movement anywhere – most of the world remained Current, China remained at March 22, 2018 and India remained at January 15, 2012. Likewise, for the Dates for Filing (which may be used) everything remained the same, April 1, 2018 for China and January 22, 2012 for India.

Unfortunately there was no guidance from Charlie Oppenheim on the projections for what the dates will do in the future. If that is forthcoming we will let you know as soon as we hear.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS transferring almost ALL EB I-485s from TSC and NSC to the National Benefits Center

USCIS has majorly reconfigured how it is handling I-485s based upon I-140s. For all I-485s based upon I-140s EXCEPT Employment Based Category 4 cases (religious workers and some other special immigrants), USCIS is transferring the I-485 cases from the Texas Service Center and the Nebraska Service Center, where they are currently handled, to the National Benefits Center.

Here is what AILA has learned of the process:

EB Form I-485 cases already with officers will continue to be adjudicated at the NSC and TSC, as will Requests for Evidence (RFEs) that have already been issued. NSC management has not provided a timeframe for how quickly individual cases will be transferred to NBC, but they informally indicated that approximately a thousand cases per week are already being shipped and that the number is expected to rise sharply. Members are reporting that they have started to receive transfer notices for their clients’ I-485 applications followed by the online case status update. This is described as a long-term jurisdictional change directed by USCIS-HQ, and NSC, TSC and NBC are all in the process of implementing it.
AILA Practice Alert: AILA Doc. No. 22040104 | Dated April 1, 2022

Will this actually work to bring down processing backlogs and shorten the time frames for cases? Certainly it should help with I-140 timeframes, as it frees up TSC and NSC to adjudicate more of those cases. In terms of the I-485 cases, that will remain to be seen – but it is a hopeful move that they are consolidating these cases, both for the speed of adjudication and for consistency in adjudication. However we will need to wait and see what happens. We will keep you updated.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.