Court of Appeals AC21 Decision helpful to those using AOS Portability

The 11th Circuit Court of Appeals recently decided a case, Kurapati v. USCIS in which the Court issued an important decision that helps tchangejobshose who filed an adjustment based upon an approved I-140 that was sponsored by an employer they no longer work for.
In most such cases, there is no real issue.  According to AC21, if you have an approved I-140 and your I-485 has been pending for six months or longer, you are able to switch employers as long as the new position is “the same or similar” to the originally sponsored position.  The exception to this is if USCIS revokes the I-140 for “cause” (i.e. fraud, or other reasons that led USCIS to believe that the I-140 should not have been approved to begin with).  In such cases, USCIS would then deny the underlying I-485 as well.  In most such cases, the first time that the employee knows that USCIS wanted to revoke the I-140 is after USCIS has already revoked the I-140 and denied their adjustment.  This is because the Notice of Intent to Revoke is ONLY sent to the employer, not the employee.  Unfortunately, in such cases the employer has little incentive to respond (if they are still in business) as the employer no longer works for them.
In one such case the employee, a Mr Kurapati challenged the revocation by filing an appeal with the Administrative Appeals Office and the US District Court.  Both bodies stated that Mr. Kurapati did not have legal standing to file an appeal, and that only the employer could file an appeal of the revocation, despite the fact that the employer in this case no longer even existed.  Mr. Kurapati then filed an appeal of the denials with the 11th Circuit Court of Appeals.  The 11th Circuit, in looking at the case made two observations.  First, they stated that the purpose of AC21 was to protect the rights of immigrants to change jobs without having to restart the entire green card process.  Second, they noted that both Mr. Kurapati and his spouse were injured by the revocation of the I-140, as they lost the opportunity to adjust their status.  Therefore, the court reasoned they DO have legal standing to appeal the denial of the I-140.
Employers should note that if an employee does challenge the revocation of an approved I-140 they may get access to all documents filed by the company in support of the I-140 and in response to the NOIR.
 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.

Scam Alert!

 

 

UnknownCallers, posing as officers of U.S. Citizenship and Immigration Services (USCIS) have been calling unsuspecting persons.  They then claim that USCIS has found problems or discrepancies in the person’s immigration files and ask for personal information.  Do not share any personal or petition data with anyone, as it can be used to get more of your personal information from USCIS or potentially to create false immigration documents in your name.  The caller knows the person’s name, address, and that the person has applied for an H-1B visa in the United States.

The scam gets worse.  The caller tells the H-1B applicant that USCIS charges a penalty for such discrepancies and tells them to send money, via Western Union, to a certain address.  Note that USCIS will not call an H-1B applicant and demand information or money over the phone.  It will communicate, normally in writing, with the attorney of record.  If there is no attorney of record, it will normally communicate with the petitioner (applicant company) also in writing.  Otherwise USCIS may also do in person audits.  However, they do not, under any circumstances call to discuss such matters over the phone.  If anyone calls, no one should respond to the questions, instead get the person’s name and phone number and tell them you will call them back.  Then report it to your attorney or local authorities (FBI, Federal Trade Commission’s Bureau of Consumer Protection).  We are not sure how wide spread this is, and have only heard about this through other firms. But we wanted to let as many people as possible know about this scam.

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.

 

Duplicate Biometrics Notices and the meaning of “should”

Recently many of our clients have been receiving duplicate biometrics appointment notices from USCIS. We have been advising our clients that it is probably a mistake but that they need to attend the biometrics just in case, otherwise the case could be denied. We, as well as many other attorney’s, also contacted the American Immigration Lawyers Association (AILA), the bar associate for Immigration Lawyers, to alert them to this issue as well. AILA, in turn contacted USCIS about the issue and just today received a response back on their inquiry.

It appears that USCIS has been trying to transition over to a new system to send out biometrics notices, and during the transition duplicate notices were sent out. USCIS went on to say that, while lawyers should consider their clients individual facts and circumstances before advising them, if the client has received a duplicate notice it “should” not be necessary to attend the second appointment.

We, however, are a little disturbed by the use of the word “should” in the above statement. This means that in some cases, it is necessary to attend. For example, in some cases the biometrics may not have yielded clear fingerprints sufficient for background checks. How is one supposed to know if it is indeed necessary to go or not? USCIS does not give guidance on this issue. It becomes, in my opinion, a guessing game.

If it were me facing this situation, I would certainly go to the second biometrics appointment just in case. After all, the inconvenience of going a second time and being told there was no need is MUCH less than that of having your application denied for failure to show.

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.

EB-2 for India may Retrogress as Early as November

According to Charles Oppenheim, the Chief of the visa Control and Reporting Division, US Department of State, the usage patterns for India, the number of visas used, etc. mean that there will definately be retrogression, and it may happen as soon as November. India has seen rapid forward movement of its priority date for the EB-2 category over the past months because the DOS is trying to ensure that all immigrant visas are used before the end of the current fiscal year. As a result many more people from India are filing their adjustment of status applications based upon their older I-140 EB-2 applications now coming current. While USCIS is trying to adjudicate these cases as quickly as possible, a number will be left over by the time the new fiscal year starts on October 1, 2014. This means that there will be a number of people with cases ready for adjudication at the beginning of the fiscal year which, in turn, means that a number of the immigrant visas allocated to Inida will be used quite quickly, necessitating the retorgression.

If past trends hold, however, then, as the fiscal year progresses, the DOS will be able to move the dates for India forward to use the otherwise unused numbers from other countries.

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.

Image courtsey of http://www.thats-bejing.com

September Visa Bulletin – A little Movement

The September Visa Bulletin was released by the Department of State and does show a little movement forward in certain categories.  First we will look at the family based immigrant visas.  In this area, there was not much movement forward, but a few notable movements are:

  • Unmarried sons and daughters of US Citizens:  Moved forward about 1 month to May 2007 for most countries.
  • Spouses and Children of Permanent Residents:  Moved forwards about 6 months to January 1, 2013 for most countries.
  • Unmarried Sons and Daughters of Permanent Residents:  Moved forward about 2 months to September 1, 2007
  • The other categories had little to no movement.

In the employment Based Categories there were only two areas in which there was movement:

  • India in the 2nd preference moved forward from January 22, 2009 to May 1, 2009.
  • In addition the Philippines moved forward in both the 3rd preference and All other categories from June 1, 2010 to April 1, 2011 – almost a one year jump.

While it is good that India is moving forward in the 2nd preference, this is what the DOS stated in terms of the movement forward for India in the 2nd preference for the coming months:

“The use of potentially “otherwise unused” Employment numbers prescribed by Section 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India Employment Second preference cut-off date to advance very rapidly in recent months. Continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, however, and no assumptions should be made until the dates are formally announced. Once there is a significant increase in India Employment Second preference demand it will be necessary to retrogress the cut-off date, possibly as early as November, to hold number use within the fiscal year 2015 annual limit.”

We shall keep you updated if the DOS releases any additional guidance

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 2014 Visa Bulletin: Inching Forward

imagesThe May 2014 visa bulletin has been released and in many of the categories there has been little to no movement.  So, without further ado, lets run through the dates:

Employment Based:

Eb-1 is still current for all.

Eb-2 is still current for all except India (which is still at 11/15/2004) and China (which progressed to 4/15/2009).

Eb-3  is still at 10/1/2012 for most of the world, and at 10/1/03 for India and 9/1/07 for the Philippines

Family Based:

F1 (unmarried sons and daughters of US Citizens):  Has moved forward about two weeks to 3/8/07 except for Mexico (11/15/93) and the Philippines (2/1/02)

F-2A (spouses and children of PRs):  Unchanged

F-2B (Unmarried sons and daughters of PRs):  Probably the biggest jump (about 4 months) to 2/1/07 for all except Mexico (5/15/93) and the Philippines (6/22/03)

F-3 (Married sons and daughters of Citizens):  Moved forward about 2 months to 9/1/03 for all except Mexico (7/1/93) and the Philippines (3/1/93)

F-4 (brothers and sisters of Citizens):  Moved Forward about 2 weeks to 12/8/01 except for Mexico 12/1/96 and the Philippines 11/1/90

That is the run down.  In terms of projections, the DOS believes that the F-2A category will start to retrogress in the coming months because of heavy demand.

EB-1A Extraordinary Ability: The Cold Hard Facts

approval-rating

Many times we hear from clients or prospective clients that a “friend” of theirs, who has much less in the way of credentials, was approved for an EB-1A.  Sometimes it was a  “friend of a friend” or a “relative”  or some other acquaintance who had the approval.  While I have no idea if these individual stories are accurate or not (and I do suspect that some of these people may have been approved in different categories, either the EB-1B Outstanding Researcher (employer sponsored) or the EB-2 National Interest Waiver (self-sponsored))  I do know that numbers wise, very few people, especially on a country by country basis, are approved in this category every year.

Overall, every year there are 40,040 immigrant visas made available to the EB-1 category.  Each country gets approximately 3% of these immigrant visas per year.   There is also a limited number of visas that can be re-allocated from countries that typically do not use all their visas, to those that use more, but this is very limited and may, only bring a single countries usage up to 7% of the total or approximately 2,802 immigrant visas in this category.  It should be noted that this 3% includes all three application types in this category:  the EB-1A Extraordinary Ability AND the EB-1B Outstanding Researcher AND the EB-1C Intracompany Transferee.  All three application types share the number of visas in this category.  It also included not just the principal filer, but their spouses and children as well.   It should also be noted, that there is no backlog in this category for any country, so the maximum number of visas in this category allocated to each country is not even being used, further bringing down the overall number of approvals.  Overall, there are simply not that many people per country getting approved in this category.

Looking at USCIS statistics, this category, the EB-1A, has a historic approval rating of just over 50%, again showing how difficult this is.  Plus, you also need to take into account that there is a certain percentage of cases that are filed that definitely qualify (they won a Nobel Prize or similar, or they have huge amounts of documentation).  Once those people are taken into account, the actual approval rating for those with less sure cases is even lower.  This is in stark comparison to the EB-1B Outstanding Researcher which has an approval rating in the 90% range.

So for those approved in this category, congratulations you are truly one of a small percentage.  For those looking at applying in this category, do not deceive yourself into thinking it is easy as it is not.  It is possible to get approved with the right documentation and the right arguments, that is what is sets apart those cases that are approved, and those that are not.  We will discuss more about the kinds of documentation necessary in future posts.

As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

The April Visa Bulletin is out

The April 2014 visa bulletin was released late last week.   For the Employment based categories, China 2nd Preference moved to March 8, 2009 and 3rd Preference worldwide, China and Mexico moved up a month to October 1, 2012.  India Second and Third Preference stayed the same and Philippines 3rd Preference also moved up a month to June 15, 2007.

In terms of Family numbers, F1 numbers moved up about 20 days to February 22, 2007 for Worldwide, India and China and to November 1, 1993 for Mexico and November 1, 2001 for the Philippines.  F2A numbers stayed the same and F2B numbers moved forward almost two months to October 22, 2006 for Worldwide, China and India but stayed the same for Mexico and Philippines.  F3 numbers moved up about 1 month for Worldwide, China and India and about 1-2 weeks for Mexico (June 22, 1993) and Philippines (February 22, 1993).  And lastly, the F4 numbers moved up about 1 week for everyone.

The Department of State did not update its estimates of movement that it put out last month, but so far, they are following those estimates fairly closely.

March 2014 Visa Bulletin Updates

The March 2014 visa bulletin was just recently published by the Department of State.  This month’s bulletin not only gave us the new cutoff dates but also provided us with some guidance as to how much the Department of State (DOS) think s that various categories will move forward in the coming months.

Starting with family cases, the F2A – Spouses and Children of Permanent Residents category – was fast moving forward.  Well, that has stalled over the last several months at September 8, 2013, and it is still there for the March Bulletin.  DOS also states that it does not foresee any forward movement in that category over the coming months.  The other family based categories are projected to move forward between 2 to six weeks every month.

In terms of the work based categories, the DOS sees Employment First preference remaining current, as well as Second Preference Worldwide availability.  For Second Preference China, which is now at February 15, 2009, the DOS sees it moving forward approximately 3-5 weeks every month.  India, which is at November 15, 2004 will remain at that date for the foreseeable future.  For Third Preference, the Worldwide and China and Mexico cutoff date is September 1, 2012.  DOS sees this date as remaining level, with great potential for having to move the date back if the potential demand for this category materializes (although in the short term there may be small moves forward).  India will most likely remain at September 15, 2003, but there is a chance of small movements forward, just not a good chance.  The Philippines, which is at May 1, 2007 will move forward at a rate of approximately 3-6 weeks each month.  For the Fourth and Fifth employment preferences, the DOS believes that they will remain current over the next several months.  It is important to note that these are just projections, and that they are only projections for the next couple of months.  Things could change rapidly depending on actual usage patterns each month.

What does this all show?  First, it appears demand for the EB-5s for China was not as high as the DOS thought, as they thought they may have to backlog that category in the next couple of months but they have not renewed that prediction in this visa bulletin.  Secondly, the EB-2 and EB-3 categories are going to remained quite backlogged for India for the foreseeable future.   The good news is that China dates seem to continue to move forward at a good pace and that does not show signs of slowing down.

July Demand Data for EB2 and EB3 cut-off dates

The Department of State has once again released the demand data used to determine the July cut-off dates for the EB-2 and Eb-3 category. It is important to note that there are additional cases outside of these numbers that have not been counted (those who have already filed an I-485, for instance, are not included. Nether are any new cases that have been filed as of the cut-off date they have used (June 7, 2013) to determine the July Visa Bulletin).

Currently, the DOS lists the following demand in the EB-2 category (please note, this is cumulative demand as of January 1, 2013):

India: 43,100 cumulative demand

China: 5,100 cumulative demand

All Other: 200 cumulative demand

For the EB-3 category, the following is the demand (same dates):

India: 41,175

China: 75

Mexico: 25

Philippines: 5,500

All Other: 400

This will give you an idea as to why the July Visa Bulletin has the cut-off dates that it does.