February 2018 Visa Bulletin Released

UnknownUSCIS has released the February 2018 Visa Bulletin. While there is certainly some movement forward, the guidance given by Mr. Oppenheim last month is still in effect and has not changed. Relevant changes are listed below.

Employment Based Immigrant Visas:

EB-1A: Still current for all Countries

EB-2: Current for Worldwide. China is at October 1, 2013, a jump of almost two months. India is at December 8, 2008, forward movement of approximately 2 weeks.

EB-3: Current for Worldwide. China is at September 15, 2014 a jump of about 5 months. India is at December 1, 2006, forward movement of one month.

Family Based Immigrant Visas:

FB-1: Worldwide, China and India are at March 15, 2011. Mexico moved forward about 2 months to July 1, 1996. The Philippines moved forward about 7 months to August 1, 2005.

FB-2A: Worldwide, India, China and the Philippines moved forward 1 month to March 1, 2016. Mexico also moved forward about 1 month to February 1, 2016.

FB-2B: Worldwide, China and India all moved forward about one and half months to January 15, 2011. Mexico and the Philippines each moved forward about 2-3 weeks to September 8, 1996 and July 22, 2006 respectively.

FB-3: Worldwide, China and India all moved forward about 5 weeks to November 15, 2005. Mexico moved forward about 1 week to June 22, 1995 and the Philippines did not move, but stayed at March 15, 1995.

FB-4: Worldwide and China moved forward 1 month to July 22, 2004. India moved forward about 3 weeks to January 8, 2004. Mexico only moved forward 1 week to November 8, 1997. The Philippines moved forward about 1 month to October 1, 1994.

The above summarizes the movements for the mentioned categories. If you are interested in another category, please feel free to contact me directly.

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.

Interviews for Employment Based I-485’s: What we Know so Far

3EB2E8ED-35F7-451D-B3AF-96539B02C187Beginning on October 2, 2017, USCIS started sending out interview notices for I-140 based adjustment of status applications. As of that date, all I-140 Adjustment of Status applications filed after March 6, 2017 will be subject to interviews. In case you were unaware, March 6, 2017 is the date the President signed Executive Order 13780m which began the whole move towards more intense scrutiny of applications. Below is some of the nitty gritty details of how this will work.

First, all approved I-140s (with their pending I-485 applications) will be routed to the National Benefits Center. Therefore, the most likely first notice you will receive after the approval of the I-140 is that your I-485 has been transferred to the NBC. The NBC will ensure that the case is ready for adjudication and, if necessary, issue an RFE for additional evidence that is needed to adjudicate the case. One thing to note in our experience so far: While NBC is fairly good at doing this, they do miss things sometimes. We would urge people to check the dates on their medical exams and, if you get an interview notice and more than 1 year has passed, get a new medical and bring it to the interview (otherwise the officer at the interview will request a new medical). Once they feel everything is set, they will send it on to the local office for an interview.

Second, the local office will NOT re-adjudicate the I-140. However, the local officers WILL assess the validity of the supporting documents and evaluate whether the evidence submitted was accurate, bona fide and credible. If the officer feels the underlying I-140 is not valid, they need to send the application back to the service center to re-evaluate it. The local office will ask where the foreigner is going to be working, what they are going to be doing, and could ask about experience and education as well. In addition, in employer sponsored cases they will check to make sure that the employer still intends to hire the employee in the requisite position, as well as questions about admissibility and maintenance of status.

If there are dependents, the local office will also be asked questions regarding their relationship tot he principal and to establish the bona fides of that relationship.

Third, in terms of what to prepare for the interview. For self-sponsored applications, despite the fact that the central office stated that they trained personnel on I-140 applications, in our experience the local offices have no clue what these applications are or what is required by them. It may be advantageous, because of this, to bring your attorney to the interview (at least until things settle down). In addition, you should make sure to bring all necessary documents to show maintenance of status, about any arrests or other grounds of potential inadmissibility, as well as employment documentation showing you intend to continue working in your field. If you were sponsored by an employer, you need documentation showing that the employer who sponsored you is still seeking to hire you in the same position OR that you have a new position at a new employer that is the same or similar to the original position (if the I-485 has been pending for at least 6 months). You should also bring a completed and singed I-485J. Also remember, that if you do have dependents they need to bring evidence of the bona fide relationship (marriage and birth certificate, evidence of join assets, home ownership, rental agreements, etc.). Lastly, as stated above, bring a new medical if necessary.

Remember, the purpose of the interview is to develop a more robust screening and vetting process. You need to be prepared.

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.

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.


USCIS Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFFMany of you may know that USCIS has had a policy in place that allowed those filing an application to renew their status (H-1B, L-1, E-1, etc.) to file a ‘bare bones’ application – an application with just new information and none of the initial documentation sent in with the first application to show that the person qualified for the status.  This policy stated that, assuming the underlying conditions were the same for the renewal (i.e. same employer, same position, etc.) then there was no real reason to totally re-adjudicate a case unless the officer felt that the initial approval was done in error.  Just this week, USCIS changed this policy.

Before going into the new policy, you maybe asking yourself “But when I filed a renewal, I filed it with substantial documentation, did I not need to do that?”.  The answer is technically no, but realistically yes.  While the above policy was in place, especially over the last year (but even before that) most officers did not follow this policy to the letter.  In most cases, we found that if we did not include substantial documentation, even for an H-1B renewal, showing that ALL the requirements were met, USCIS would issue a Request for Evidence.  So in practice, the above policy was more of a slight leaning in favor of approving the renewal rather than the intent of the policy, which was to lighten the load of officers and those filing the cases.

So what does the new policy say?  It rescinds the old policy and states that each application should be adjudicated according to its own merits regardless if it is an initial application or a renewal.  In practice, it simply means that there is no longer a slight bias in favor of approving a renewal, and, instead, you will need to be more careful and ensure that you provide documentation with the renewal to show that ALL qualifications are met, even if the documentation was given with the original application.  It also means that the fact that a case was approved in the past, does not mean that, if you file the same documentation, the case will be approved in the future, or that USCIS will not request additional evidence the second time around.

So while this may not change the rules as much as one may have thought on first glance, it still does change them to a certain degree.  That degree will depend on the strength of the underlying case.

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 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.