October Visa Bulletin and Check in With the Dept. of State

Because of the new format of the Visa Bulletin, it will be easier for me to break these updates into two sections:  Section 1 will discuss the Final Action Date; and, Section 2 will discuss movements in the Dates for Filing section.

Final Action Date Movements:

Family Based:  Most categories moved forward somewhere between 1-2 months.  Some of the categories for the Philippines, etc. moved forward a little more than that (up to six months) but that was only in a couple of categories.

Employment Based:

EB-1:  Still current for everyone

EB-2:  Big move in China (which we had indicated could happen as early as October) from 2006 to January 1, 2012.  Unfortunately, India went the opposite way – from January 1, 20016 to May 1, 2005.

EB-3:  Most of the world stayed at August 15, 2015, however there was movement for certain countries.  China, once again, moved forward rapidly to October 15, 2011 (from 2004) and the Philippines moved from December 22, 2004 to January 1, 2007.  Unfortunately, once again, India retrogressed somewhat, going from December 22, 2004 to March 8, 2004.

Other Workers:  Again, most of the world stayed at August 15, 2015, the Philippines and India saw the exact same movement in this category as was stated above for the EB-3 category.  China progressed from January 1, 2004 to January 1, 2006

Dates for Filing

As this is the first month for this new section, we will just look at what the dates are.  Also, every month at the beginning of this section I will indicate whether USCIS is accepting Adjustment of Status Applications based upon this date (they are going to make this decision on a monthly basis).  It is also important to remember that the dates in this category are based upon the Department of State’s prediction of where the Final Action Dates will move within the next year.

For the Month of October USCIS will accept I-485 application based upon this date.

Family Based:  Most categories have a Date for Filing about 1 year or so ahead of the Final Action date.  A good example is the F2A (Spouses and Children of Permanent Residents).  The Final Action Date is April 15, 2014 and the Date for Filing is March 1, 2015.

Employment Based:

EB1:  As with the Final Action Date this is current for all countries

EB2:  This is more interesting.  While most countries are current, India and China are backlogged in this category.  China, for the final action date, is in 2012, but the Date for filing is at May 1, 2014.  So anyone from China with an approved or pending I-140 in the Eb-2 category with a priority date on or before May 1, 2014 (and in the US legally) can file their I-485 come October 1, 2015.

More interestingly, India, which saw their Final Action Date actual go backwards to 2005, has a Date for Filing of July 1, 2011.  As stated above, this means that the DOS feels that they will be getting close to this date in the next year or so.

EB3 and Other Workers:  This is at September 15, 2015 (about 1 month ahead of the Final Action Date) for most of the world.  Exception are India, which is at July 1, 2005 (meaning there will not be much movement in this category for India over the next year), China, which is at October 1, 2013 for the EB3 category and January 1, 2007 for the Other Worker Category, and the Philippines, which is at January 2, 2015 for both categories (again, foreshadowing that there will be good movement in the Final Action date in these categories for the Philippines in the next year).

Check in With Charlie Oppenheim

The American Immigration Lawyers Association had its monthly check in with Mr. Oppenheim, the person at the DOS who is in charge of setting the above dates.  Basically, they just reviewed the new format of the Visa Bulletin with him.  However there was one item worth mentioning. When discussing what, if any impact, the Dates for Filing would have on the Final Action Dates, Mr. Oppenheim felt there would be little change except that By having USCIS allowing the filing of the I-485 based upon the Dates for Filing will give the DOS a better grasp of the actual numbers of applicants out there waiting for immigrant visas.  This will result in less wild swings in the dates and more steady movements forward (hopefully).

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.

USCIS Timeline Reports: How to Read Them

One would think that the timelines that USCIS lists on their website for each case type a particular USCIS office would be accurate, up to date, and easy to understand.  Unfortunately, this is not the case.  If you go to the USCIS website and click on See Office Case Prcessing Times you will be presented with several choices.  You need to know at which office your case is at, and then you can click on that office and up will pop a table with applications types and processing dates.  ( I am copying the table for the Texas Service Center below for example purposes).

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As you can see, this table was updated on July 27 2015.  Right now you must be thinking “He said that they do not keep things updated, but that’s less than 1 week old”.  While that is true, bear with me and I will explain.  Looking at the chart and picking one petition type, I-140 NIW,  we can see that the Texas Service Center is saying that it is only taking 4 months for them to adjudicate these applications.  So it would follow, if these dates were actual accurate, that the Texas Service Center would be processing cases that were filed as of March 27, 2015 – 4 months prior to July 27, 2015.  Unfortunately, this is where the accuracy and the timeliness of the information comes back to affect these dates, because that is not the date that the Texas Service Center is currently at.

First,  as USCIS states, the date they give only means that they are processing cases within 30 days of that date.  In other words, while the may be working on some cases that were filed as of March 27, 2015, the majority of cases they are working on have been filed BEFORE that date, and may have been filed as early as February 27, 2015.

Additionally, if you look closely at the table, right at the top of the table, there is language that states “Field Office Processing Dates For Texas Service Center As Of:  May 31, 2015”.  What this means is that although the table was updated on the website on July 27 ,2015, the actual dates they are talking about are only accurate  AS OF MAY 31, 2015.

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So now, that 4 month processing time is not subtracted from July 27, 2015, but is subtracted from May 31, 2015.  This brings us to between December 27, 2014 and January 27, 2015.   This is a two to three month difference than what most people would have thought upon first looking at this chart.  But that is not all.

Looking at the cases our office has filed, and what is still pending, it is clear that, AS OF TODAY, August 3 2015, the Texas Service Center is still in December 2014.   This adds another several months onto the processing time, and shows how inaccurate USCIS dates really are.  They are saying that they were in January/December as of May 31, 2015, but as of today, over two months later, they are STILL at the same dates.  Either they are moving exceptionally slow, or they are giving out overly optimistic dates.  While they have certainly been slowing down, unfortunately it also appears that they are giving out dates that are very much overly optimistic.

The conclusion here is that, unfortunately, USCIS is not giving out very accurate information when it comes to the timelines for adjudicating application.  It is very hard to predict, therefore, exactly when we will hear back on any given petition. Especially when you consider that, despite their insurance that they operate on a first in, first out basis, they very frequently will adjudicate application out of order. We know this can be very frustrating to our clients, and it is also very frustrating to us, but it is something we have to deal with on a daily basis.  There is very little that can be done about it.  While we certainly try our hardest to get USCIS to move on such cases, there is not always a quick fix.

Please contact us with any questions.  Also, 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 2015 Visa Bulletin and Guidance from DOS on future Movement

Last week the August 2015 visa bulletin came out.   While there were not many major changes, there are some worth noting.

First, in terms of family based numbers, most categories moved forward about 1 month for All Other Countries.  Numbers for Mexico, China, India and the Philippines either stayed at the same date or move forward slightly.  The person at the DOS in charge of Visa Numbers, Charles Oppenheim, did issue guidance saying that the F2A category – Spouses of Permanent Residents, which has been moving forward fairly steadily, would continue to do so for the foreseeable future because of lack of demand.

Moving to employment based, there is more to report:

EB-2:  Most of the world is current for EB-2 except India and China.  India remained in 2008, but China continues its forward movement to December 15, 2013, a jump of 2.5 months.  Mr. Oppenheim says that China will most likely move forward again in September (or, at the worst, hold steady).  India will not move forward.

EB-3:  This category saw the biggest changes.  Worldwide numbers moved forward to July 15, 2015, a jump of 3 months.  Mr. Oppenheim projects that this number will move forward again in September, but he may hold it steady in October and November just to see if additional demand appears.  For China, EB-2 when from 2011 back to 2004, a retrogression of 7 years. According to Mr. Oppenheim, this is because unused family numbers for China that he had been predicting would fall down to the EB-2 category are not materializing (i.e. more family based visas are being used than he thought).  Therefore he had to backlog China.  However he does feel that forward movement (and moving China back to 2011) will happen in October.

Any question?  Please feel free to contact 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.

EAD Delays and What You Can Do About It

EAD Delays and What You Can Do About It

So you filed your I–485 and have been patiently waiting for your Employment Authorization Document (EAD). It’s now been 75 days or 90 days or longer and you still have not received your EAD. What can you do? The first thing you should know is that you are not alone. USCIS is behind in producing the EAD cards and more and more are taking around 90 days or longer. Second, you should remember as well that USCIS’ own regulations state that they will provide the EAD for those who have filed an adjustment application within 90 days, otherwise, so they state, they will provide a temporary EAD until they can produce the actual EAD.

What Steps Can I take to Try to Make Sure My Case is Handled Within 90 Days?

The first step you can take is at the 75 day mark. Once the case has been pending for that long, you can initiate a service request. You can either call 1–800–375–5283, or you can use the e-request system. What is suppose to happen is that once you put in such a request, USCIS will give your case priority treatment and, hopefully, will adjudicate the case within the 90 day framework.

The second step you can take is the same as the first step – put in a service request if the 90 day period is exceeded. Unfortunately, while under their regulation USCIS is suppose to provide a temporary EAD if they exceed 90 days, in practice, they no longer follow that regulation and, actually have no way of providing such a card. Therefore, unless you are willing to bring a lawsuit against USCIS, putting in a service request (or using a Senator or Representatives office to put in such a request) is the only real form of relief.

Can I expedite My EAD Case?

Many people do ask us if there is some type of expedite processing for EADs. While there is such a process, it is very hard to qualify for such an expedite. USCIS criteria to grant such a request are: severe financial loss to the company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest; USCIS error; or compelling interest of the USCIS. The USCIS tends to review expedite requests very closely and typically will grant such a request only if it is accompanied by strong evidence. It is also important to remember that simply not being able to work because you will not have the EAD is NOT “severe financial loss”. This is what will happen to every person whose EAD is not granted in 90 days. Therefore you need to show more than just the inability to work (being turned out of your apartment or loosing your house, etc. We should also point out that, in our experience, sometimes asking for the expedite after you have already filed the application can actually make the case take longer than it would have had the expedite not be requested – so if you are going to ask for an expedite it should be done at the time when you actually file the application, to avoid such an issue.

Conclusion:

We do understand that the inability to work is a hardship to anyone who faces such an issue. Therefore, if you have any questions, or if you are facing an issue with your EAD not being granted in a timely manner, please feel free to call and we are happy to help.

I am about to file my I-140, should I file the I-485 concurrently with it or wait to file the I-485 until the I-140 is approved?

imgresMany, many clients have asked us this question, and it is not an easy question to answer. Most importantly, the answer may be different depending on each persons exact situation. First, to explain a little bit, this question is looking at the fact that, under current USCIS rules, you can file the I-485 at the same time you file your I-140 and before you know if the I-140 is approved or not. While filing both applications together certainly saves time (both applications timelines run together), it can cause other issues. For example, if the I-140 is denied, then your I-485 would be denied. If you were relying on that application for your status, then you would be out of status from that point forward (most likely).

Generally, the factors we look at are:

  1. What is your current status? If you are on an H-1B, then there is little risk of filing the I-140 and I-485 together as you can maintain your H-1B status even after filing the I-485. Other statuses are trickier.
  2. When does your current status expire and what is the chance of your employer renewing it?
  3. Do you (or a spouse) need work authorization as soon as possible or can you wait?
  4. Do you need to travel in the near future (and need means need, not want).
  5. What category of I-140 is being filed?

These are just some of the questions we go through with our clients to help them make the determination on whether to file the I-140 and I-485 together, or to wait and see if the I-140 is approved first, then file the I-485.

Clearly, each individual will have to review the facts in their individual case and make a decision for themselves as to which process to use. You can, of course, call with any questions in this regard.

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.

Court of Appeals AC21 Decision helpful to those using AOS Portability

The 11th Circuit Court of Appeals recently decided a case, Kurapati v. USCIS in which the Court issued an important decision that helps tchangejobshose who filed an adjustment based upon an approved I-140 that was sponsored by an employer they no longer work for.
In most such cases, there is no real issue.  According to AC21, if you have an approved I-140 and your I-485 has been pending for six months or longer, you are able to switch employers as long as the new position is “the same or similar” to the originally sponsored position.  The exception to this is if USCIS revokes the I-140 for “cause” (i.e. fraud, or other reasons that led USCIS to believe that the I-140 should not have been approved to begin with).  In such cases, USCIS would then deny the underlying I-485 as well.  In most such cases, the first time that the employee knows that USCIS wanted to revoke the I-140 is after USCIS has already revoked the I-140 and denied their adjustment.  This is because the Notice of Intent to Revoke is ONLY sent to the employer, not the employee.  Unfortunately, in such cases the employer has little incentive to respond (if they are still in business) as the employer no longer works for them.
In one such case the employee, a Mr Kurapati challenged the revocation by filing an appeal with the Administrative Appeals Office and the US District Court.  Both bodies stated that Mr. Kurapati did not have legal standing to file an appeal, and that only the employer could file an appeal of the revocation, despite the fact that the employer in this case no longer even existed.  Mr. Kurapati then filed an appeal of the denials with the 11th Circuit Court of Appeals.  The 11th Circuit, in looking at the case made two observations.  First, they stated that the purpose of AC21 was to protect the rights of immigrants to change jobs without having to restart the entire green card process.  Second, they noted that both Mr. Kurapati and his spouse were injured by the revocation of the I-140, as they lost the opportunity to adjust their status.  Therefore, the court reasoned they DO have legal standing to appeal the denial of the I-140.
Employers should note that if an employee does challenge the revocation of an approved I-140 they may get access to all documents filed by the company in support of the I-140 and in response to the NOIR.
 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.

May 2014 Visa Bulletin: Inching Forward

imagesThe May 2014 visa bulletin has been released and in many of the categories there has been little to no movement.  So, without further ado, lets run through the dates:

Employment Based:

Eb-1 is still current for all.

Eb-2 is still current for all except India (which is still at 11/15/2004) and China (which progressed to 4/15/2009).

Eb-3  is still at 10/1/2012 for most of the world, and at 10/1/03 for India and 9/1/07 for the Philippines

Family Based:

F1 (unmarried sons and daughters of US Citizens):  Has moved forward about two weeks to 3/8/07 except for Mexico (11/15/93) and the Philippines (2/1/02)

F-2A (spouses and children of PRs):  Unchanged

F-2B (Unmarried sons and daughters of PRs):  Probably the biggest jump (about 4 months) to 2/1/07 for all except Mexico (5/15/93) and the Philippines (6/22/03)

F-3 (Married sons and daughters of Citizens):  Moved forward about 2 months to 9/1/03 for all except Mexico (7/1/93) and the Philippines (3/1/93)

F-4 (brothers and sisters of Citizens):  Moved Forward about 2 weeks to 12/8/01 except for Mexico 12/1/96 and the Philippines 11/1/90

That is the run down.  In terms of projections, the DOS believes that the F-2A category will start to retrogress in the coming months because of heavy demand.