Premium Processing Resuming

UnknownUSCIS announced last week that it was resuming premium processing as of June 1, 2020.  However, USCIS stated that it would phase in the ability to file premium processing on cases in order to ensure that the office was not inundated with new premium processing cases before it was fully up and running again.  To that end, USCIS announced the following schedule for getting Premium Processing back up and running:

June 1:   Premium Processing for all I-140s will begin

June 8:   All non-H-1B I-129 application filed prior to June 8th that are eligible for premium processing can be upgraded as well as cap-exempt H-1Bs filed prior to June 8th.

June 15:   All statutorily cap-exempt application filed on or after June 8th

June 22:   All I-129 and I-140s eligible for premium processing (i.e. normal premium processing resumes)

So, as of today, I-140s can be upgraded to premium processing (or I-140s just being filed can be filed as premium processing).  Please do remember that not all I-140s are eligible for premium processing. Specifically those filed as a National Interest Waiver, or as an Intra-Company transferee are NOT eligible for premium processing.

In terms of I-129 application, there are more exceptions there as well.  If you are unsure if your application is eligible for premium or if you require assistance in upgrading your application, please do not hesitation on contactingour office.

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.

Upcoming Executive Order Regarding Immigration

images-1_FotorAs most, if not all, of you, have heard, our President is preparing an executive order to limit immigration into the United States.  At this time, as the order has not been finalized, we cannot say what the impact will be on individual cases.  Below is a list of what we have heard may, or may not, be included in the order:

  1. The reports are that it will only place limits on immigrant visas (definitely affecting consular processing and, maybe affecting the adjustment of status in the US as well).  It is reported that it will not affect non-immigrant visa issuance.
  2. The reports are that the immigration halt will be in place for 60 days and then will be re-evaluated.
  3. There have been reports that it will only apply to employment-based cases and will not affect family-based cases.
  4. There have been reports that there will be other exceptions as well for essential employees, which could include health care workers, researchers, farmworkers, and, perhaps, others.

So far, the above is all we know, and even that is not certain because there is no actual draft of the order as of yet.  We will update you once the order is finalized and we have more facts.

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.

February Visa Bulletin and Update from DOS

UnknownOnce again the EB-2 category has remained current despite the projections that there could be a backlog (although, as you will see below, we are not yet out of the woods on the EB-2 retrogression as of yet).  Below are the movements in most Family and Employment categories as well as an update from Charlie Oppenheim of the Department of State on probable movement in the near future.

Family Based Categories

F1: Moved forward a little over a month to August 22, 2013 for most of the World EXCEPT  Mexico (moved forward about 2 weeks to August 22, 1997) and the Philippines (moved forward 2.5 months to April 1, 2009).

F2A: Remained Current for the World

F2B: Moved forward almost two weeks to August 22, 2014 for most of the World EXCEPT  Mexico (moved forward about 3 weeks to September 15, 1998) and the Philippines (moved forward 3 months to May 1, 2009).

F3: Moved forward about 1 week to November 22, 2007 for most of the World EXCEPT  Mexico (moved forward about 3 weeks to March 22, 1996) and the Philippines (moved forward 4 months to May 1, 1999).

F4: Moved BACKWARD about 8 months to July 1, 2006 for most of the World EXCEPT  India (moved forward about 2 weeks to November 22, 2004), Mexico (moved forward about 1 weeks to January 15, 1998) and the Philippines (moved forward 4 months to July 1, 1999).

UPDATE FROM DOS:

F2A will see a backlog in the coming months.  Charlie is not quite sure when, but it will occur.

F4 retrogressed due to a dramatic increase in demand for this category.  Expect this new date to be held for the next several months.

Employment-Based Preference Categories

EB-1:  Moved forward about 1 month to December 1, 2018 for most of the world EXCEPT China (held at May 22, 2017) and India (stayed at January 1, 2015).

EB-2:  Stayed Current for most of the world EXCEPT China (moved forward about 1 week to July 15, 2015) and India (moved forward 1 day to May 19, 2009).

EB-3:  Stayed Current for most of the world EXCEPT China (moved forward 1 month to January 1, 2016), India (moved forward 1 week to January 8, 2009) and the Philippines (moved forward about 2.5 months to June 1, 2018).

UPDATE FROM DOS:

EB-1: In February, the final action date for EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) advances two months to December 1, 2018. Based on currently available information, it remains possible–yet too early to confirm–that this category could become current in the summer of 2020.

EB-2:  Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.

EB-3:  Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020. Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.

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.

National Interest Waiver: Not just for Scientists

jobs-and-occupations.jpgA big question that many people have, before even asking if they would qualify for a National Interest Waiver application, is can I even file one considering that I am a [fill in the blank with your profession].  You may be surprised that, for the most part, the answer is “Yes, people in that profession can apply for a National Interest Waiver”.  Business people, engineers, researchers, some computer people as well – all these professions (and many more) can work with the National Interest Waiver.

First, before discussing how they qualify, let me explain what the National Interest Waiver is and why people want to file that application.  The National Interest Waiver is what is called a self-sponsored application – that is an application in which the beneficiary (the foreign national) is also the petitioner.  This means NO employer or family member is needed to sponsor you.  To qualify, a foreign national must show that their proposed endeavor (the work they want to do in the US) is of substantial merit and national importance.  The must also show that they are well positioned to carry out the proposed endeavor and that it would be beneficial to the National Interest to waive the job requirement.

As you can see from the requirements, a business person who can show that their past business activities helped the US economy or helped employ people, or affected how other businesses operate can show that they meet all three categories as listed above (please note, I did not say that it is guaranteed that they can meet the three categories, just that such a position has the potential of meeting all three categories.  It always will come down to that actual evidence the person is able to get).  The same holds true for other areas as well.  Even engineers and computer personnel who may not publish their work may still be able to make a good case for the National Interest Waiver.  Under the new standard, it is not only research and discoveries that are looked at but entrepreneurship is also looked at for its ability to help our economy and lower unemployment.

There are some limitation, however.  For example, a chef working at a 5 star restaurant, regardless of their renown, etc. would have a hard time showing that their work is in the National Interest.  A painter/artist would similarly have a hard time showing that they qualify for a National Interest Waiver, as would a programmer for a company with 50 other programmers who does not do anything special at that company. What it comes down to is that it is what you do in your occupation rather than the occupation you are in that matters for the National Interest Waiver. That means that people in ANY occupation COULD qualify.  For example, an artist who starts to work in art therapy and publishes on the techniques they use, or who opens up a business and hires US Citizens, etc.  This is really the same for any occupation – because, as stated above, any occupation can do activities that would fit within the National Interest framework – it is just not quite as straight forward or easy for certain occupations.  If you have any question, or wish us to review your CV to see if you could qualify in this category, please do not hesitate to call or email me.

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.

Conclusion

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.

Check in With Charlie Oppenheim on Immigrant Visa Movement

UnknownCharlie Oppenheim has released some more information on how he sees immigrant visa usage heading this year.

Overall his  predictions are largely positive, with forward movement predicted in most categories.  However, it should be noted that the new USCIS policy requiring transfer of employment-based I-485s to field offices for interview is expected to increase volatility in final action date movement in employment-based categories. These categories may actually see faster advancement of certain final action dates in the near term because fewer cases will be adjudicated, though once the transition is complete and the USCIS adjudications process has stabilized, there may be slower movement or retrogression in certain categories depending on usage.

In addition, if there are delayed adjudications, this would  mean less visibility in demand for the State Department, which may result in more rapid forward movement (if Charlie does not know of pending cases, or projected usage, he cannot account for it in setting dates in the visa bulletin). The timeliness of the sharing of demand data by USCIS may also be impacted, as data will need to be pulled from multiple offices, as opposed to a more centralized approach to adjudications and data collection in the past.

The total number of visas used by USCIS as a whole during this fiscal year (or, at least, the first quarter of the fiscal year (October through December, 2017)) has decreased by several thousand as compared to FY2017. Charlie plans to advance categories as needed to generate sufficient demand to ensure usage of all available visa numbers, while trying not to do so too rapidly to avoid retrogression or unavailability.

In terms of specific categories:

Employment-Based Categories

EB-1 India and EB-1 China:  The imposition of a final action date for EB-1 China and EB-1 India in July/August/September of 2017, created pent up demand which was largely adjudicated in October, November and December of 2017. However, so far, this fiscal year, EB-1 India and EB-1 China have already used 7,000 and 4,500 visa numbers, respectively. Charlie expects these categories to remain current for the coming months, but the imposition of a final action date in the summer remains likely if the current rate of demand continues. This could, however, be delayed if the transition of I-485s to USCIS Field Offices results in slowed processing of EB-1 China and EB-1 India cases in the coming months.

EB-2 Worldwide: This category should remain current for the foreseeable future.

EB-2 and EB-3 China:  As stated in my last post, EB-2 China will advance just under two months to October 1, 2013, and EB-3 China will advance five months to September 15, 2014 in the February Visa Bulletin. According to Charlie this category will continue to  advance at a rate of two to three months each bulletin, and may progress at a faster pace to generate demand. EB-3 China is predicted to advance at a pace of “(u)p to five months.” Charlie advised that EB-3 China will likely continue to advance at a faster pace than EB-2 China.

However, this may “flip” around, and EB-2 China may start progressing at. Faster rate.   It is unclear whether this “flip” will occur in FY18 due to a combination of factors, including the availability of otherwise unused family-based preference numbers for China, and uncertainty as to how the transfer of employment-based I-485s to USCIS Field Offices will impact the speed of adjudications and the processing of upgrade and downgrade requests.

EB-2 India:  Again, as stated in my previous post, EB-2 India will advance by less than one month in February from November 22, 2008, to December 8, 2008. Given heavy demand, the February Visa Bulletin predicts modest forward movement for EB-2 India at a rate of “(u)p to two weeks.”

EB-3 India:  The final action date for EB-3 India will advance one month to December 1, 2006. The February Visa Bulletin predicts forward movement in this category at a pace of one to three months. Once the final action date advances beyond August 2007, Charlie will have very little visibility into demand. Once this occurs, there is the potential for rapid movement of the EB-3 India final action date to generate new demand. This may happen either late this fiscal year (August or September of this year) or next fiscal year.

EB-3 Philippines:  This category will advance two weeks to March 1, 2016, in February. Demand in this category is comfortable, but not extremely high, which means there is less room to advance this date significantly. Charlie is watching this category closely since there have been spikes in demand, and he does not want to advance the final action date too quickly to avoid future retrogression. At this time, demand in this category is heavily weighted toward consular processing, but it is expected that USCIS filings could increase significantly in the coming months.

Family Based Categories

Final action date movement tends to be less erratic and more predictable in the family-based categories since Charlie has greater visibility into demand patterns based on the fact that these cases are primarily adjudicated at consular posts rather than domestically by USCIS. Charlie predicts FB-1 Worldwide advancing at a pace of up to one month, FB-2A Worldwide advancing three to five weeks, FB-3 Worldwide advancing up to five weeks, and FB-4 worldwide advancing up to three weeks.

FB-1 Philippines and FB-2B Philippines, which had retrogressed in December, will advance seven months and 21 days in February, respectively. Charlie will continue to monitor demand carefully in these categories over the next several months. Recent volatility is attributable to the lack of visibility of rescheduled appointments made by applicants through the Department of State’s Global Support System (GSS). Charlie is working closely with the post in Manila to obtain more accurate demand data, and he hopes that as a result, these dates will slowly advance and recover.

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 2018 Visa Bulletin and Update from Charlie Oppenheim

UnknownThere have been some movements on the immigrant visa front, and some setbacks.  Below is an update on where things are and where they may be going.

Employment Based Immigration Visas:

EB-1:  Current across the Board for now, however according to Charlie, India and China may backlog by summer.

EB-2:  Current for Wordwide.  China progressed more than 1 month to August 8, 2013 and India progressed less than 1 month to November 22, 2008.  According to Charlie, China should continue to progress, but India will not move forward significantly in the near future, not even progressing into 2009 before the summer of 2018.

EB-3:  Current for Worldwide.  China moved forward more than 1 month to April 15, 2014.  India moved forward a couple of weeks to November 1, 2006.  The large demand in EB-3 for India has lessened somewhat so Charlie is hopeful that this category will continue to progress at the same rate over the upcoming months.  The Philippines moved forward about 1 month to February 15, 2016.  The large demand that had surfaced last month for the Philippines has lessened so, as with India, Charlie is hopeful of continued movement but will be monitoring demand closely.

Family Based Immigration Visas:

FB-1:  Most countries moved forward about 1 month to March 15, 2011.  The exceptions are Mexico (in 1996) and the Philippines (which is in 2005).  According to Charlie the Philippines, which recently had a large retrogression, will not be moving forward anytime soon.  Apparently already 40% of their immigration visas in this category are gone, whereas by the end of March they are usually at 54%.  Because they are already so close to that number, Charlie has had to slow down visa usage for them in this category (and the FB-2B category as well).  Because of movement forward in this category for worldwide number, Charlie is monitoring increased usage very closely.

FB-2A: Most Countries moved forward just over 1 month to February 1, 2016.  The only exception was Mexico which is at January 1, 2016.

FB-2B:  Most Countries moved forward just a couple weeks to December 1, 2010.  The only exceptions are the Philippines, which is in 2006 (see FB-1 for explanation) and Mexico which is in 1996.

FB-3:  Most Countries moved forward about 1 month to October 8, 2005. The only exceptions were Mexico and the Philippines, both of which are in 1995.

FB-4:  Most Countries moved forward a couple weeks to June 22, 2004.  India also moved forward a couple weeks to December 15, 2003.  Mexico is in 1997 and the Philippines is in 1994.  As India is moving forward in this category, Charlie is monitoring usage very closely in case increased demand surfaces.

Update from Charlie Oppenheim RE: Visa Bulletin Movement

UnknownCharlie Oppenheim recently released a new update on possible movement of various visa categories.  While for the most part there are no surprises, it is good to review what he says on your particular category to ensure you are not surprised in future months.  However, overall, it was a short update this month.

EB-1:  All countries should remain current for the foreseeable future (including China and India)

EB-2:  Worldwide should remain current for the foreseeable future.  India and China will have some forward movement but not much.

EB-3:  Worldwide should remain current for the foreseeable future.  India will most likely hold steady and China will move forward slowly.  Charlie has been paying close attention to China especially because of the number of EB-2 downgrades.  To prevent any retrogression, Charlie is only moving forward slowly in that category.  The Philippines should also progress slowly.

Family based:  Mostly modest movement forward.  The only surprise is FB-4 for India, which is having lower than expected demand and may move forward more quickly than Charlie previously thought.

 

November 2017 Visa Bulletin Released

UnknownThe Department of State released the November 2017 visa bulletin.  This bulletin includes some modest forward movement in most categories.

Family Based Immigrant Visa Numbers

USCIS has allowed people to base the filing of the Adjustment of Status applications on the Dates for Filing.  However those dates have not changes since last month.  As most people who file family based applications are not in the US, and the Final Action Dates have changed somewhat, I will discuss those dates below.

FB1:  Most countries moved forward a month to January 22, 2011.  Mexico also moved forward  a month to April 1, 1996.  The Philippines did not move from January 1, 2007.

FB2A:  All countries moved forward 1 month to November 15, 2015 except Mexico which moved forward a month to November 1, 2015

FB2B:  Most countries moved forward about 1 week to November 15, 2010.  The only exceptions were Mexico, which also moved forward about 1 week to July 22, 1996 and the Philippines which did not move from January 1, 2007

F3:  Most countries moved forward about 1 month to August 15, 2005.  Mexico moved forward about two weeks to May 8, 1995 and the Philippines moved forward about 1 week to March 1, 1995

F4:  Most countries moved forward about two weeks to May 22, 2004.  Mexico moved forward 1 week to October 8, 1997.  India moved forward about three weeks to October 22, 2003.  The Philippines moved forward about 1 week to June 8, 1994.

Employment Based Immigrant Visa Numbers

According to USCIS, all flings must use the Final Action Dates.  Therefore, all below dates are based upon that chart.

EB-1:  Remains current for all countries

EB-2:  Current for most countries except:  India, which moved forward about 1 month to October 8, 2008; and, China, which also moved forward about 1 month to June 15, 2013.

EB-3:  Most countries are current except: India, which did not move from October 15, 2006; China which forward about 1 month to  February 1, 2014; and, the Philippines, which moved forward about 1 month to January 15, 2016

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 Rule – All Employment Based I-485 application will have Interviews

Recently USCIS issued a new rule stating that all employment based green card applications will be subject to interview starting on October 3, 2017.  Just this week AILA members and the Ombudsperson for USCIS had a Stakeholder Call to discuss the new rule. Here are the details that came out of this call:

  •  All EB applications are subject to the new rule INCLUDING NIW and EA applications.
  • Any I-485 filed prior to March 6, 2017 (the date of the EO “Protecting the Nation from Foreign Terrorist Entry into the United States” the root of this new requirement) are NOT subject to the new rule.  Those cases will still be subject to random interviews, but only about 5% of cases are so selected.
  • The Service Centers will still adjudicate the I-140’s and the local offices have been instructed not to readjudicate the I-140s however they are allowed to evaluate the evidence used to support the I-140 for accuracy and credibility.  We will have to see how this plays out in real life.
  • Once the Service Center adjudicates the I-140, the file will be sent to the National Benefits Center (NBC) to determine if all documents for the I-485 are present.  If there is no medical, this is when an RFE will be sent out for the medical (and, considering that there will be longer processing times for everything, it may be wise to not submit the medical until an RFE is issues).
  • Surprisingly, USCIS does not feel that timelines will be significantly lengthened due to this requirement.  According to USCIS employment based I-485s are only about 17% of the Field offices caseload.  We will have to see how this plays out in the real world.
  • The top field offices that will be most affected are: San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles.
  • In most cases families will be interviewed together.

As we learn more information we will certainly let you know.  Please do contact us with any questions on how you may be impacted.

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.