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.

NIW Adjudications on Hold

Unknown-1.jpegA couple of weeks ago we informed you that the AAO decided a case in which they changed the standard for adjudicating NIW cases (See this blog post).  USCIS has confirmed today that ALL pending NIW cases are on hold pending training for officers on the new standard.  USCIS did indicate, however, that processing of these cases should resume by the end of February of this year.

What does this mean for your case?  The chances are that USCIS has not adjudicated any cases since the decision was handed down, more than 1.5 months ago.  The backlog created by this stoppage will take some time to clear out, and will probably delay adjudications by up to 2 months. We will update you if additional information is made available.

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 (NIW): NYSDOT overturned, new standard introduced

pic.jpgOn December 28th, 2016 the Administrative Appeals Office issued a decision in Matter of DHANASAR that has changed the landscape for National Interest Waiver cases.  This is of major importance as the National Interest Waiver is one of only two self-sponsored applications and many scientists, researchers, entrepreneurs, and others use this application to obtain Permanent residence in the US.  In order to explain how this decision has changed the landscape, it is first important to understand what the previous standard was

In Re: New York State Department of Transportation

Under the Immigration and Naturalization Act, there are five Employment Based Immigrant Visa Levels.  Each level can have several categories.  The National Interest Waiver is laid out in the Second Level (EB-2) in section 203(b)(2) of the act.  Under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” (See INA Section 203(b)(2)).

As can be seen, this does not provide much, if any, guidance on how USCIS should proceed in these types of cases.  USCIS did not help matters when it passed its regulations in this area.  All USCIS did was copy the language of the above statute verbatim.  It was the AAO that ended up defining how to show that your services are in the national interest.  The AAO did this in a case called In Re: New York State Department of Transportation (NYSDOT). In that case the AAO laid out a three-part test:

  1. Show that the area of employment is of  “substantial intrinsic merit”.
  2. Show that any proposed benefit from the individual’s endeavors would be “national in scope”.
  3. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the foreign national.”

In deciding to relook at this framework, the AAO stated that they felt that there has been confusion, especially as to the third prong, about how to demonstrate the above three prongs.  In addition, the AAO felt that this confusion has caused USCIS to be too narrow in the cases it has approved.  More specifically, the AAO seemed to feel there were two main issues.  First, in terms of the national in scope, the AAO wanted to make clear that this was NOT a geographic issue. Instead, it is an issue of national importance.  Second, in looking at the third prong, too much emphasis has been placed on requiring a showing of harm to the national interest if the application is not approved as well as too much emphasis on showing influence on the field and using that as a yardstick to determine if a person meets the standard.  Because of the above, the AAO decided to reformulate the above test.

New Test in Matter of DHANASAR

Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:1. that the foreign national’s proposed endeavor has both substantial merit and national importance; that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

  1. That the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Prong 1: That the foreign national’s proposed endeavor has both substantial merit and national importance

Looking at the first prong first, this is what the AAO states:

Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

Comparing this to the first two prongs of NYSDOT, it is clear that many more people should be able to meet these standards.  First, in terms of substantial merit, the AAO is removing any required proof about economic benefit and is willing to accept more esoteric benefits.  While we have used this in many cases, it is good to see it immortalized into the actual standard.

Second, it show national importance, the AAO is specifically allowing local impacts that affect national priorities to be used in this regard.  In other words, with such a big emphasis these days on the economy and especially on creating jobs, you can use the potential jobs created for a particular endeavor in one state to justify the national importance of the project.  This is a major broadening of this criteria.

Again, we have used these arguments already in many cases (especially the global importance equals US national importance) and it is good to see this more formally allowed.

Prong 2:  That the foreign national is well positioned to advance the proposed endeavor

This prong is, perhaps, the most interesting.  According to the AAO:

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

It seems that, what the AAO is getting at, is that just saying you want to continue working in your field is not enough.  While you may not need a job offer, you do need a plan as to how you will continue your work in your field (be it collaborations you are planning or something similar.  It also is looking at your past successes to ensure that you will be able to continue to have success in your area of expertise.  In this way, it is also very similar to what was already required under the old standard.  It seems that the AAO is trying to open up that standard by saying that you do not have to show substantial success in the past, just a record of success, which is easier to show.

Prong 3: The petitioner must demonstrate, that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus a labor certification.

Again, as above, this is very similar to what the AAO said in NYSDOT, however, it is also much broader.  Under the old standard, this was phrased in the negative, you had to show that the National Interest would be adversely affected if you were not granted the waiver of the job and labor certification requirement.  The AAO felt this was too restrictive:

In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Under the old standard, you had to show why you would help the national interest to “a substantially higher degree” than an available US worker.  Under this new standard, you need to show that the US would still benefit from your work (or, at least, this is part of the test).  Again, this new standard helps broaden the scope of the NIW and helps many people who may not have qualified previously, to now, at least, have an argument for qualifying.

Conclusion

Overall, the AAO tried to open up the NIW to people who it felt should qualify, but whom USCIS was not qualifying under the old standard.  While the intent of the AAO is clear it remains to be seen how USCIS will interpret this new standard.  We are hopefully that they will interpret it in the spirit in which it was annunciated, that is liberally. We are also hopeful that this new standard will especially help those in the areas of international relations, scientists whose fields do not garner large number of citations or who have moved to non-traditional jobs as well as the aforementioned business people and entrepreneurs.  We will certainly update you as we learn more about how USCIS will implement this new standard.

Lastly, please keep in mind that, even if you filed your NIW case prior to this ruling, this is now the rule that USCIS will apply in your case.  Please also 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.