Is Immigration Reform Possible Soon?

Is there a possibility that congress may be able to pass immigration reform soon? Democrats are making a big push to do so, but there margin is extremely slim (1 Senator), so how can they get this done? What the Democrats are trying to do is using the budget process to enact this far reaching legislation.

Budget Reconciliation

In general, most legislation in congress requires a 60 member majority to enact. However, an exception to this is the reconciliation process for the budget (where the house and Senate get together and hash out their bill) – for this a only a simple majority is needed. Democrats have been trying to utilize this process to get some type of immigration reform passed, however they have run into a road block – the Senate Parliamentarian. You see, in order for non-budget provision to be included, the budget effects of the legislation are suppose to outweigh the actual statutory changes. It is the Parliamentarian that determines if this balancing act has been achieved and advises the Senate on whether a provision should be included. In terms of the proposed Democratic Immigration provisions, the Parliamentarian has stated that they should NOT be included as the statutory changes outweigh the suggested economic benefits that the Democrats indicated.

The next logical question is – Is the approval of the Parliamentarian needed to enact this legislation? The answer is no, the approval of the Parliamentarian is NOT REQUIRED. However, it is commonly sought, and the advice is usually followed. The last change that was made that went against what the Parliamentarian advised was just a couple years ago when Republicans removed the required 60 votes needed to approve a Supreme Court justice. And in this case, where the Democrats only have a 1 vote majority in the Senate, and where some Senators stated they would most likely not vote against the Parliamentarian, they are very eager to get that approval.

So what does this mean for the chances of passing some reform? The biggest obstacle that the Parliamentarian pointed out was the provisions that would allow those in the US without status to adjust. It appears that if Democrats are willing to pare back their ambitions in that area (and I do understand why they wish to pass this, and agree that it is needed) and submit a smaller bill, that the Parliamentarian may well approve of the addition. So, overall, I would say that there is a good chance that some immigration provisions will be included and passed, the only question is how much and which provision.

DHS Looking at Expanding Use of Biometrics as well as adding new Biometrics

DHS this week indicated that it was going to propose a rule expanding the use of biometrics in immigration cases. Currently, in cases in which background checks are required, DHS (and, by extension USCIS) requires biometrics (fingerprints and photos at this point) to be taken at the Application Support Centers across the US. The new rule would allow USCIS to begin capturing biometrics for ANY and all immigration cases it deems fit. In addition, it would expand the biometrics that are allowed to include DNA samples, iris scans, and any new technologies developed. Also (as if the above was not enough) the new rule would also remove any age limit on such collection (currency those under 14 do not have to have biometrics taken).

First, it is important to note that USCIS charges for taking biometrics. Most likely, if there are more types of biometrics being taken, that fee will go up and more people will be forced to pay for it. Second, no real reason was given for the increase in biometrics. Most likely it will be stated that they are trying to fight against fraud, etc. however there has certainly been no increase in immigration fraud and it remains extremely rare. Expending so much time and effort to fight something so small seems counter-intuitive. It seems much more likely that they feel such measures, especially the capturing of DNA information, will put up more barriers to people seeking to immigrate to the US. Unfortunately, this will affect ALL immigrants and non-immigrants who will be forced to pay for and give more biometrics information. It may also affect US Citizens who could be forced to give DNA information as well if they are sponsoring certain immigrants (to prove relationship). Again, USCIS already requires DNA samples in cases in which there is a likelihood of fraud (either the documentation submitted makes it appear as such or the Country in question has a record of allowing fraudulent documents). Why they need to expand this ability to other cases in which there is NO indication of fraud does not make sense. This is similar to the expansion of immigration interviews to ALL cases (when it use to be mainly used just for family-based cases). In the case of interviews, the explanation given was also to counter fraud (when there was very little fraud in employment-based cases to begin with). This policy has been put in place for several years now, however, there has been NO change in the number of fraudulent cases and no evidence that the policy has done anything to help in cutting down fraud. The problem with both these cases is, as stated above, that the goal seems more to slow down the process or frighten people off from using the process than it does to look for and weed out fraud.

In addition to the above, this would also add even more barriers to an already overtaxed agency to carry out its mission and resolve cases in a reasonable period of time. Timelines for cases have been steadily increasing and adding in the need to take more and more biometrics will slow down the process even more, creating bigger backlogs.

Here is the link to the news article that broke the story, which has since been picked up by others in the press:

Time will tell whether the current administration will actually be able to implement the policy and, even if they do, whether the next administration will continue the policy.

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.

September Visa Bulletin Summary

Overall dates are moving forward, but there are some noticeable categories that are lagging behind and not progressing as much, this includes Employment Based Third Preference which doesn’t move forward at all this month. Below is a summary of movement in most categories

Family Based Categories

F1: Moved forward one months to September 15, 2014 for most of the World EXCEPT  Mexico (moved forward about 2 weeks to January 8, 1998) and the Philippines (moved forward 3.5 months to December 15, 2011).

F2A: Remained Current for the World.

F2B: Moved forward one month to July 8, 2015 for most of the World EXCEPT  Mexico (moved forward about two weeks to April 8, 1999) and the Philippines (moved forward 4 months to August 1, 2011).

F3: Moved forward about two weeks to June 15, 2008  for most of the World EXCEPT  Mexico (moved forward two weeks to August 1, 1996) and the Philippines (moved forward 3 months to February 15, 2002).

F4: Moved forward about three weeks to September 22, 2006 for most of the World EXCEPT  India (moved forward about 2 weeks to March 8, 2005), Mexico (moved forward about 1 week to June 22, 1998) and the Philippines (moved forward 4 months to January 1, 2002.

Employment-Based Preference Categories

EB-1:  Remains CURRENT for most of the world EXCEPT China and India (moved forward about 1 month to  March 1, 2018). Currently India and China are at the same date as they are using the otherwise unused visa numbers from the EB-1 category, as other countries are well below normal usage, as well as visa number falling up from the EB-5 category (i.e. unused visa number from EB-5 fall up to the EB-1 category).

EB-2:  Stayed Current for most of the world EXCEPT China (stayed at January 15, 2016) and India (stayed at July 8, 2009). As EB-2 visa numbers are being used and it appears that all visas in this category will be used by the end of the fiscal year, no movement forward was made.

EB-3: Stayed backlogged to April 1, 2019 for most of the world EXCEPT China (stayed at February 15, 2017) and India (stayed at October 1, 2009).

Please contact us with any questions or concerns.  And 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.

New Executive Order and Possible Furloughs at USCIS

executive_order__1_The US President issued a new executive order on Monday evening.  The order did several things.  First, it extended the April 22, 2020 order limiting the ability for those overseas to get immigrant visas.  Second, it expanded that order to include certain non-immigrant visas as well.  Lastly, it required USCIS and DOL to review processes and procedures regarding EB-2 and EB-3 cases.    Before providing a summary of the provisions, there are a couple points to highlight.

First, and most importantly, the non-immigrant visa suspensions affect only those NOT IN THE United States.  This is also true of the immigrant visa suspension.  Second, the J-1 visa suspension does NOT include all categories of J visas.  For example, the Research Scholar category, and the Visiting Scholar categories are NOT included in the suspension.  Lastly, those outside the US with a currently VALID H-1B visa may still be able to return on that visa as the suspension only halts the issuance of new visas.  Here is a slightly more expansive summary of the provisions:

On June 20, 2020, President Trump has issued a proclamation that suspends the entry of foreign nationals on certain employment-based nonimmigrant visas into the United States.

This Proclamation also extends, effective immediately, Presidential Proclamation 10014 issued on April 22, 2020 which suspended the entry of certain immigrants into the United States.

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B visa and any foreign national accompanying or following to join them;
  • H-2B visa and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them.

The Proclamation will only apply to an individual identified above if they are:

  • Outside the United States on the effective date of the Proclamation;
  • Do not have a nonimmigrant visa that is valid on the effective date of the Proclamation; and;
  • Do not have an official travel document other than a visa (such as a transportation letter, boarding foil, or advance parole document), valid on the effective date of the Proclamation or issued thereafter permitting the individual to be admitted to the United States.


The Proclamation will not apply to the following individuals:

  • lawful permanent residents;
  • spouse or child of a U.S. citizen;
  • any individual seeking entry to provide temporary labor essential to the U.S. food supply chain;
  • any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

For the purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
  • are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
  • are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

Discretion: The consular officer has discretion to determine if an individual is within one of the exempted categories outlined above.

Asylum Seekers: Asylum seekers are not included in the ban. The Proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

Fraud: Individuals who circumvent the application of the Proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

Additional Review: Within 30 days of this Proclamation’s effective date, and every 60 days after, while it and Proclamation 10014 are in effect, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and State will make a determination as to any need to modify either proclamation.

COVID-19 Prevention: The Secretary of Health and Human Services will provide guidance to the Secretaries of State and Homeland Security concerning measures that will reduce the risk of those seeking admission to the United States introducing or spreading COVID-19 within the country. It is our understanding that this means individuals will be subject to a COVID-19 test before arrival.

Additional Measures:

  • Issue regulations or take additional actions to ensure that those who have already been admitted, or are seeking admission, on an EB-2 immigrant visa, EB-3 immigrant visa, or H-1B nonimmigrant visa do not limit opportunity for U.S. workers.


In addition to the above, USCIS announced that their revenues are down over 50% and that, unless Congress allocates more funding to the agency they will be required to furlough almost 70% of their staff, causing huge delays in adjudications if it were to occur.

If you have any questions, or wish to discuss the above, please do not hesitate to call or email me. And 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.

Immigrant Visa Backlogs and Congress: Can They Fix the Problem?

UnknownNot everyone realizes but there are huge backlogs of cases for employment based immigrant visas.  For about 1 year now the EB-1 category (Extra-ordinary Ability, Outstanding Professor and Researchers and Intra-Company Transferees) category has been backlogged about 1 year for most of the world and several years for China and about 4-5 years for India.  The EB-2 category, while current for most of the world, has been backlogged about 4 years for China and about 10 years for India.  The same is true of the EB-3 category.  For those from India and China especially, the requirement of having to wait 10 years or more for a green card is hard on the family.  It can cause children, who may be 2 or 3 when they arrive in the US, to age out before a green card can be obtained – forcing these now grown Children to either go home or get their own visas and begin their own processes.  Furthermore, the employees are working for years without hope of major pay increases or promotions, for fear of being fired (if they ask and are denied) and loosing their place in line.

Congress has been looking at ways of fixing this.  The most popular bill currently, that almost passed the Senate, would alleviate the issue by removing the per country limitations currently in place for employment based immigrant visas.  Currently, all employment based immigrant visas are divided among all countries in the world evenly. While the Department of State can reallocate some visas based upon usage patterns, no country can get more than 7% of the immigrant visas in any given category.  That means, for example, for EB-1 visas India can only get about 3,000 visas per year (and that includes visas for all dependents of the primary applicant (spouses and children).  The bill in congress would remove those limitation in steps and would put in place protections so those from other countries who already applied in the employment categories when the bill was filed, would not loose their place in line.  However, the effect of this bill would hit people from EVERY country.

Within 4-9 years all countries would be facing major backlogs in all categories.  While the current backlog would be cleaned out by then, there would still be significant delays for everyone.   Another bill, in addition to removing the per country limitations would also remove dependents from the visa count.  This means a family of 6 or a family of 4 would be counted as just one immigrant visa against the quota.  This would greatly help to reduce the backlog and would go a long way towards ameliorating the issues caused by just removing the per country cap.  This bill, however, would also raise the number of employment based immigrant visas, a portion of the bill that is unlikely to pass this Congress or, even if it were, to be signed by this President.  There are currently other Senators working at removing the increase in immigrant visas from the bill to try to make it more passable.

Overall, while all these bills try to tackle this issue, the problems with our current immigration system are fairly widespread.  Our immigration laws were written over 30 years ago now in many cases, and longer in some.   Many things have changed since then and a major overhaul is certainly in order.  However, because of the current polarization of our political system, it is doubtful that any such major reform could be passed anytime soon.  Therefore, smaller fixes are all we can hope for in the near term.  Hopefully congress can get together and put together a bill that will help everyone and help prevent the current backlogs we have.

Those interested in this issue can read a good article in The Washington Post here.

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.

January Visa Bulletin – Good Surprises

UnknownThe Department of State released the January Bulletin as well as an update from Charlie Oppenheim as to usage patterns and what to expect in the future.  The biggest surprise was that there was NO backlog for the EB-2 or EB-3 category as predicted.  In fact, usage patterns slowed so much that Mr. Oppenheim now thinks that the category should remain current for a couple additional months as well.  We will keep our on on the category however, and update you with any changes.  Below are the other date changes for the bulletin along with the predictions from Charlie Oppenheim:

Family Based Categories

F1:  Moved forward 2 months to July 15, 2013 for everywhere EXCEPT Mexico (stayed at August 8, 1997) and the Philippines (moved forward 2.5 months to January 15, 2009). Prediction: This category should move forward about 6 weeks over the next month or two.

F2A: Remained current across the board.  A final action date will be established in the coming months.

F2B: Most of the world remained at August 8, 2014 EXCEPT Mexico which remained at August 22, 1998 and the Philippines with is the the only Country that moved forward (2 months) to February 1, 2009.  Prediction: This category will move forward about 3 weeks over the next month or two.

F3: Moved forward 1 week to November 15, 2007 EXCEPT for Mexico (forward 1 week to March 1, 1996 and the Philippines (moved forward 4 months to January 1, 1999). Prediction: This category will move forward about 1-3 weeks over the next month or two.

F4: No movement for most of the world (staying at February 1, 2007) EXCEPT India (forward 1 week to November 8, 2004), Mexico (forward 3 weeks to January 8, 1998 and the Philippines (moved forward 2.5 months to March 1, 1999). Prediction:  This category has moved forward rapidly to stimulate demand.  Unfortunately this demand has materialized quite a bit and there will be retrogression with no forward movement after that.

Employment Based

EB1: Moved forward 2.5 months to October 1, 2018 EXCEPT China (moved forward 1 week to May 22, 2017) and India (no movement – stayed at January 1, 2015).  Prediction: Will come current in the next couple of months

EB2: Stayed Current for most of the world EXCEPT China (moved forward 1 week to July 1, 2015) and India (moved forward a couple days to May 18, 2009).  Prediction:  Will backlog in the second half of the year.

EB3:  Stayed Current for most of the world EXCEPT China (moved forward 1 month to December 1, 2015) and India (stayed at January 1, 2009). Prediction:  Will backlog in the next month of two.

Please do contact us with any questions.  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.

Potential EB-2 Backlog starting as early as January 2020

box-turtle-wildlife-animal-reptile-159758_1.jpegFor those who may have missed this in my last blog post (See here), there is a potential that the EB-2 category, which includes the National Interest Waiver may no longer be current for ANY country come January 2020.  What does this mean?

In order to file the I-485 application, there must be an immigrant visa number available in the category in which you are filing.  The Department of State puts out what is called the Visa Bulletin every month.  This Bulletin lists each category for a green card (each category that has a limited number of visas, that is) and lists a date for each category.  That date signifies that cases filed BEFORE that date are now eligible to receive an immigrant visa number.  If, instead of a date, there is a C, that denotes that the category is current, and all applications are eligible for visa numbers.  To explain with an example, let us say the date for EB-2 (which includes the NIW) is 2/1/2019 – this would mean that those cases in which the I-140 (NIW) application was filed PRIOR to 2/1/2019 could now file the I-485 application.  If the date were C it would mean that even someone filing their I-140 today would be able to file the I-485 with that I-140.

In addition to the above, the date listed in the visa bulletin also must be current for a given case in order for the I-485 to be approved.  Again, using the example above, let us say we filed the I-140 on 1/1/2019 with the I-485, and our interview is scheduled for 1/15/2020.  On 12/15/2019 a new visa bulletin comes out that says the new date for EB-2 is 12/30/2018.  Our case is no longer current, therefore even though we have an interview scheduled, the I-485 cannot be approved (to be fully clear, it is possible that USCIS requested the visa number PRIOR to the backlog, so it could still be approved because a visa number was allocated, but lets assume that did not happen).

In general, China and India have had backlogs in the EB-2 category for many years now.  The catch-all listing for all other countries is generally current (listed as a C).  However, in most fiscal years, towards the end of the year (the year ends on September 30, so around July or August) the catch-all listing will backlog as USCIS has used all the immigrant visas in that category.  However, at the beginning of the next fiscal year (October 1) it will come current again.  If, in fact, the EB-2 category does backlog for the catch-all listing, then this could mean that it will remain backlogged for the foreseeable future.  This just happened for the EB-1 category less than 1 year ago – it became backlogged early in the fiscal year and has remained backlogged about 1 to 1.5 years for the catch-all listing since that time.

However, it is important to realize we do not know yet if it will backlog in January, or February or later.  Much will depend on the usage statistics for November (and December).  We will know more around December 15, when the January visa bulletin is released.  We will update you then.

If you are thinking of filing the I-140 and I-485 simultaneously, then you would need to immediately begin getting all documents together as you may no longer be able to do that come January 1, 2020.  Call us with any questions.

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.

November Visa Bulletin and an Update From Charlie Oppenheim

UnknownBefore discussing the visa bulletin for November, I just wish to apologize for the absence of posts in the last couple of months.  In the future I shall make sure that there are no more long pauses such as the one that occurred and will ensure that I am able to get out relevant information to all my readers in a timely manner.  Thank you.

The November Bulletin had some movement (mostly) in both Family and Employment Categories.  Let’s take a look at employment categories first.  Please do note that were dates are given for “All Other Countries” this includes not just that general category, but all other individually listed countries that are at the same dates (such as El Salvador, Guatemala and Honduras – which are listed out separately but track with All Other Countries in most instances).

Employment Based Cases

EB-1: This category moved from April 22, 2018 to June 1, 2018 for All Other Countries.  For China, it moved forward from November 1, 2016 to February 1, 2017 (quite a jump) and for India there was no movement as it stayed at January 1, 2015.  According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before July 1, 2019 for All Other Countries, September 1, 2017 for China and March 15, 2017 for India.

EB-2: This category remained Current for All Other Countries.  China moved forward from January 1, 2015 to March 15, 2015.  India went from May 12, 2009 to May 13, 2009. According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before August 1, 2016 for China and July 1, 2009 for India.

EB-3: This category remained current for All Other Countries.  China and India both had no movement – China staying at November 1, 2015 and India staying at January 1, 2009. According to USCIS Dates for Filing may be used for this category – this means that those in the US may file their I-485 if the priority date of the I-140 is before  March 1, 2017 for China and February 1, 2010 for India.

Family Based Cases

FB-1: This category moved forward from January 15, 2013 to March 1, 2013 for All Other Areas.  Mexico stayed at August 8, 1997 and the Philippines moved froward from July 1, 2008 to September 15, 2008. 

FB-2A: This category remained Current for ALL Countries.

FB-2B: This category moved forward from June 1, 2014 to July 8, 2014 for All Other Countries.  Mexico moved forward from August 1, 1998 to August 22, 1998.  The Philippines moved forward from September 1, 2008 to October 1, 2008.

FB-3: This category moved forward from September 15, 2007 to October 15, 2007 for All Other Countries.  Mexico had no movement, staying at February 22, 1996 and the Philippines moved forward from April 1, 1998 to June 1, 1998.

FB-4: This category moved forward from November 22, 2006 to January 1, 2007 for All Other Countries.  India moved forward slightly from October 1, 2004 to October 15, 2004 while Mexico had no movement, staying at December 15, 1997.  The Philippines moved forward from July 8, 1998 to September 1, 1998.

According to USCIS Dates for Filing should be used for all categories EXCEPT for FB-2A (which is current under Final Action Dates, but actually has a cut-off for Dates for Filing).  The Dates for Filing are generally a couple months ahead of the dates listed above (which are the Final Action Dates).  Please contact us if you have any questions in this regard.


Family Based Cases

For family based cases, the F2A Final Action Date, which became current in July 2019, remains current across all countries for November. This trend has been surprising because Charlie expected that there would be a surge in demand which would have required imposition of a Final Action Date no later than January. The demand for F2A across countries remains extremely low, with applicants not responding to the agent of choice letters, and at this time there is no indication that a date will need to be imposed in the near future.

Employment Based Cases

EB-1:  You should expect to see the EB-1 categories advance at up to three months for Worldwide  and China, and little if any forward movement for India.  India will not advance for some time since there is already significant number use and pending demand in that category (17% usage already for Q1).    Overall usage in this category (For Worldwide numbers), however, shows lower demand than previous years.  If this low demand trend continues, then EB-1 (for All Countries other than India and China) could return to Current at some point later in the year.

EB-2:  EB-2 Worldwide remains current for November and is expected to remain current for the foreseeable future.   Charlie is starting to see an increase in upgrades from EB-3 India to EB-2 India, with the numbers requested so far in October most likely being attributable to upgrade requests.

Given that the Final Action Date for EB-3 China (November 1, 2015) is eight months ahead of EB-2 China, it is likely to prompt downgrades which could take the pressure off of EB-2 China demand, causing that category to advance.

EB-3:  The EB-3 category bears watching as we continue to move into Q2 of the fiscal year and beyond. Charlie is very surprised at the high level of numbers used in this category this fiscal year as well as pending demand for this category, noting that it is significantly higher than it has been in the past to the tune of thousands. Nevertheless, Charlie still expects EB-3 Worldwide to remain current through at least January.  EB-3 China is receiving a high level of downgrade requests, with 300 requests in October alone.  If this trend continues it will limit the advancement of EB-3 China while potentially increasing the rate of advancement for EB-2 China.  Expect little to no movement for EB-3 India.


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. 

August 2019 Visa Bulletin Released – Backlogs All Around

box-turtle-wildlife-animal-reptile-159758_1.jpegJust yesterday the Department of State released the Visa Bulletin for August 2019 and there are backlogs all around for Employment Based Green Cards – updates for all categories below:

EB-1A:  This has been backlogged for quite a while, but is retrogressing a couple years this month to July 1, 2016 for everyone except India, which is retrogressed to July 1, 2015.

EB-2:  This has been current for most of the world but will be retrogressed to January 1, 2017 for everyone except India, which retrogressed to May 2, 2009 for India.  However, on the bright side, the Dates for Filing for the EB-2 are current (except for China and India) which shows that this is a short term backlog and should come back to current on October 1 of this year.

EB-3:  This category was also current for everyone prior to this month (except China and India) but has retrogressed to July 1, 2016 for everyone except India, which is at January 1, 2006.  As with the EB-2 though, the Dates for Filing are current (again except for China and India) indicating this is just temporary and will go back to current on October 1, 2019.


The above retrogressions are due to high demand in all employment categories.  Hopefully, the high demand is due to USCIS working through its backlogs, which means certain timelines, at least, may start coming down (timelines on the adjudication of applications, not the visa bulletin backlogs).  It also means that the demand will not be sustained which would mean that there is a much higher likelihood that the dates will return to where they were prior to this new visa bulletin.  It should noted that, while we feel (and Mr. Charlie Oppenheim also feels) that the dates will return to the dates that they had in the July Visa Bulletin (which was current for EB-2 and EB-3 for all areas except India and China), this is not a guarantee.

Case Processing Times are Rising as Number of Cases being Processed Drops

Arrows-Up-Down-2Many of you have probably noticed the increase in processing times at USCIS lately – I-140s are taking a long time, H-1Bs and other changes of status applications are talking almost a year to process, and I-485s are now well over a year to process as well. Well, the American Immigration Lawyer’s Association has reviewed the processing statistics released by USCIS and come up with some startling conclusions.

First, in terms of how long it is taking USCIS to adjudicate applications, it appears that, overall, processing times have increased 19% in fiscal 2018 alone (that is October 1, 2017 through September 30, 2018). This does not include the tremendous growth in processing times throughout 2017 either. Since this time, USCIS has released further statistics showing that, in the first quarter of 2019 alone, processing times have grown another 11-25% depending on the application type. This is affecting individuals and businesses alike.

Now, one would think that such increases would be matched by increases in the number of cases filed with USCIS. However, if one made that assumption they would be wrong. In fiscal year 2018 the number of cases filed actually dropped almost 13%, from 8,530,722 in fiscal year 2017 to 7,527,851 in fiscal year 2018.

So, to summarize, the number of cases USCIS is dealing with dropped almost 13% BUT processing times increased an average of 11%. It appears that agency policies such as requiring interviews on all employment based adjustment of status applications and the removal of the policy allowing deference to certain prior case determinations have adversely affected the ability of USCIS to adjudicate cases in a timely manner. Imagine if USCIS had to deal with the same volume of cases it had received in 2017, or more. Case processing times would probably have risen at an even steeper level than they have.

If the above practices actually made us safer, that would be one thing. However the reality is that they are just window dressing, things that can be used politically to show the administration is cracking down, when, in reality they do little to actually combat fraud or help catch immigration violators or criminals. Hopefully thinks will change and these delays will start reversing.

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.