Backlog – Immigration Briefs

New Visa Bulletin, New Possible Backlogs

DOS released the March 2023 Visa Bulletin a couple days ago and has indicated that new possible backlogs could be down the road and also appeared to remove some possible backlogs as well.

First, last month the Department of State indicated that the Family Based 2A category (spouses and minor children of Permanent Residents) had the possibility of backlogging as soon as this month. Well, this month came, and it did not backlog. In addition, this month, there was no indication that the category is in trouble of backlogging in the future. This would lead me to believe that this category should stay current for the foreseeable future.

Second, as we reported previously, the Employment-Based Second Category (which includes employer-sponsored applications for those with a Master’s Degree or higher as well as National Interest Waiver applications) is backlogged for all countries and has been so since December 2022. In this month’s bulletin, the DOS states as follows:

Since December 2022, there has been higher than expected number use and demand, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates. This will necessitate corrective action 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.

This means there is now little hope of the EB-2 category coming current or moving forward until at least October 1, 2023, when the new government fiscal year begins.

Third, the DOS is now indicating that the Employment-Based Third category (employer-sponsored cases for those positions that require a Bachelor’s degree, two years of experience, or are considered unskilled labor) may become backlogged in the near future. The DOS stated:

Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) 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.

Other than the above, most categories did not have any changes in terms of dates. The only exceptions are Employment-Based Category 4 (special immigrants and religious workers) and the Employment-Based 5th preference for India (Investment green card) – which backlogged almost another year.

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 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.

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.

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:

https://www.buzzfeednews.com/article/hamedaleaziz/trump-immigrant-biometric-info-applications

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.

Exemptions:

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?

Unknown Not 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

Unknown The 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

For 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.