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.

October 2016 VIsa Bulletin: Forward Movement for All

unknownThe Department of State released the visa bulletin for October 2016 recently. Below is a summary of movement and changes.

Family Based Immigrant Visa Numbers

F1 – Unmarried Sons and Daughters of US Citizens: This category moved forward about 1 week to September 22, 2090 for every country except Mexico (which moved forward 1 week to April 1, 1995 and the Philippines (which moved forward 1 week to August 1, 1995).

F2A – Spouses and children of Permanent Residents: All countries moved forward around 1 month, Mexico moved forward about 3 months to December 1, 2014. And the rest of the World moved forward about 5 weeks to December 22, 2014

F2B – Unmarried Sons and Daughters of Permanent Residents: Most of the world moved forward about 5 weeks to March 15, 2010. Mexico moved forward only 2 weeks to October 1, 1995 and the Philippines moved forward 1 month to January 1, 2006

F3 – Married Sons and Daughters of US Citizens: Most of the world moved forward about 3 weeks to December 22, 2004. Mexico moved forward about 1 week to November 22, 1994 and the Philippines moved forward about 3 weeks to July 8, 1994

F4 – Brothers and Sisters of US Citizens: China moved forward 4 months to May 1, 2003. India jumped just over 1 year to December 1, 2002. Mexico moved forward a couple weeks to May 1, 1997. The Philippines moved forward about 6 weeks to April 15, 1993. The rest of the world moved forward about 1 month to November 1, 2003

Predictions for coming months:

There should be forward movement on all categories in the next several months of about 2-6 weeks.

Employment Based Immigrant Visas

EB-1: As stated previously, this became current for everyone for October.

EB-2: Again, as we stated previously this became current for Worldwide numbers, Mexico and the Philippines. It moved forward to February 15, 2012 for China and to January 15, 2007 for India.

EB-3: Moved forward 1 month for Worldwide and Mexico to June 1, 2016. China jumped forward to January 22, 2013 (putting the EB-3 category ahead of the EB-2 for China). India Moved forward about 1 month to March 1, 2005 and the Philippines moved forward about 5 months to December 1, 2010.

Predictions for the Coming Months:

For EB-2s the Department of State sees China and India moving forward about 3 months (maybe 4 months for India) in the coming months. Worldwide and Mexico should remain current.

For EB-3s, they still feel that for the Worldwide numbers, demand may cause them to backlog (however this did not occur at all last year, and they thought it would then as well), but we will have to see. For China, EB-3 should move forward about 3 months. It will move forward only about 1 week for India and about 3 weeks for the Philippines.

Checkin With Charlie Oppenheim on Visa Numbers

Charlie Oppenheim, the officer at the Department of State in charge of visa numbers and the Visa Bulletin, recently released an update to his predictions for the upcoming months. Below is a summary of some of that update.

Family Based Visa Numbers

According to Charlie, in September most of the family-based categories will likely hold or retrogress from where they are in August. Only F-4 Worldwide has the potential to advance in September. Charlie expects a full recovery from retrogressions in all of the family-based categories in October, with the exception of F-4 China and F-4 India which will take some time. Beginning in November 2015, beneficiaries of F-4 China and F-4 India started responding to NVC Agent of Choice letters in larger numbers, which has given Charlie better visibility into the demand in these categories, but ultimately resulted in the retrogression of these cut-off dates.

It should be noted that when we state that there will be a “full recovery” Charlie is not saying that the categories will become current, but that they will go back to their pre-August 2015 dates.

Employment Based Visa Numbers

CHINA:

The Final Action date of January 1, 2010 that was imposed in June for both EB-2 and EB-3 China remains the same in August with no forward movement in either of these categories expected this fiscal year (which ends on September 30, 2016).

EB-2 should recover partly in October, 2016 and should fully recover to its previous dates by the end of this calendar year.

INDIA:

EB-3 India should advance modestly into a 2005 Final Action date in September. EB-2 India will continue to track one week ahead of the EB-3 India Final Action date in September.

EB-2 will advance in October 1, 2016 with the new fiscal year, and should fully recover by December of this year.

WORLDWIDE:

EB-3 Worldwide has been hovering close to “current” for some time, and is expected to do so through at least October.

Eb-2 was retrogressed in August to February 1, 2014 with the hope of holding number use to within the EB-2 annual limit. That date should hold in September and is expected to fully recover to “current” in October.

August Visa Bulletin: EB-1 backlogs for India and China, EB-2 Backlogged for Everyone

UnknownThe August 2016 visa bulletin was released by the Department of State yesterday.   It features backlogs for ALL countries in the EB-2 category and other changed.  However, readers should understand, that while certain countries (India and China) have regular backlogs in the EB-2 category, those for other countries in the EB-2 category and those in the EB-1 category are  temporary.  I will discuss this more in depth below as we  look at the specifics of the Visa Bulletin:

Family Based Applications

F2A (spouses and children of permanent residents):  No movement

F4 (siblings of US citizens): No movement

F1 (unmarried sons and daughters of US Citizens):  The priority date for most countries moved forward about 2 months to May 22, 2009.  The exceptions are Mexico (no change) and the Philippines (moved forward 1 month to March 22, 2005)

F2B (unmarried sons and daughters of permanent residents):Not much movement.  Most countries moved forward about 1 month to January 8, 2010.  The exceptions are Mexico (no movement) and the Philippines (moved forward 2 months to Sep. 15, 2005)

F3 (married sons and daughters of US Citizens):  Almost no movement, except the Philippines moved forward about 2 weeks to March 15, 1994

Work Based Applications

EB1:  As discussed in previous blog posts, there was always a change of a backlog, and it has occurred.  India and China are backlogged to January 1, 2010.  This will be a TEMPORARY backlog, however.  These dates will become current again on October 1, 2016. The beginning of the new fiscal year.  Every other country remains current.

EB2:  Worldwide is backlogged to February 1, 2014.  Again, this is temporary and will become current again on October 1, 2016 the beginning of the new fiscal year.  China remained unchanged at January 1, 2010 and India moved forward very slightly to November 15, 2004

EB3: Worldwide numbers moved forward about 2 weeks to March 15, 2016.  China, again, remained unchanged at Jan. 1, 2010 and India, again, moved forward slightly to November 8. 2004.  The Philippines also moved forward in this category about two months to May 15, 2009.

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.

Etsy? Ebay? Am I violating my Immigration Status by using these sites?

Unknown.jpegWe get this, and similar questions, from our clients frequently.  This is a very complex issue and every situation is different.  However, there are some key considerations you should think about.  The key questions are:

  • Are you carrying out the activity for profit?
  • Are you just trying to get rid of excess goods you have in your possession?
  • Are you deriving an income from the activity?
  • Looking at your activities “objectively” would you say you are conducting business or not?

I think that the last point is the most important to keep in mind.  If it feels like you are starting a business, and you are intending to make a profit from your activities and you are consistently selling goods then the chances are USCIS will see it as a business.  As the saying goes – “if it walks like a duck and talks like a duck, it most likely is a duck.”  It is also important to remember that USCIS takes a very liberal view in terms of what constitutes doing business.  This means that they would be more likely to find something is a business than not.  Going back to the saying, all USCIS would need is to see that it walks like a duck, and they would say “it is most likely a duck, unless you can prove to us it is not.”  That being said, selling some goods on eBay – just once or twice probably is not going to run afoul of any of these rules.  A good resource to look at for some of these issues is the IRS website and publications where they define for tax purposes (and I emphasize, this is NOT necessarily how USCIS will rule) what is a business and what is a hobby.

Why should you be concerned about whether what you are doing is considered a “business” or not?  If USICS feels that you have started a business and you do not have the appropriate visa to work for that particular business, then you could be found to have worked without permission and this could jeopardize your immigration status and your ability to get permanent residence in the United States.  Therefore, this issue is extremely important and something you should look into BEFORE beginning any such activity.  Remember, USCIS can look into may business activities  – anything that is your tax returns or reported to the IRS, they could decide to review.  They can, and do, troll through the internet in some cases as well to see what they can find about a person – and if they see an Etsy store or something similar, this could raise questions in their mind.

If you have any questions leave a comment below or send me an email.  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.

July 2016 Visa Bulletin and Check-In with DOS

Unknown.jpegThe Department of State (DOS) released the July visa bulletin recently and Charlie Oppenheim, the person at the DOS who is in charge of the visa bulletin also updated the American Immigration Lawyer’s Association on what further movement or backlogs can be expected in the near future.

For family based cases, there was not much movement at all.  Below is a table showing the movement.

Family Based All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
F1 2 Months 2 Months 2 Months 2 Weeks 1 month
F2A 1 Week ! Week ! Week None 1 Week
F2B 2 Weeks 2 Weeks 2 Weeks None 1 Month
F3 None None None None 1 Month
F4 1 Month None None None 1 Month

For employment based, there was also not a lot of movement.  Again, the movement and new dates are listed below:

 

Employ.

Based

All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
1st C C C C C
2nd C None (Jan 1, 2010) 1 Month (Nov 1, 2004) C C
3rd 2 Weeks (Mar 1, 2016) None (Jan 1, 2010) I Month (Oct 22, 2004) 1 Month (Oct 22, 2004) 3.5 Months (Feb 15, 2009)

In terms of future movements, we will look at family based categories first.

FB4- China: For China, the FB-4 category just recently retrogressed and will remain at its current date through July, and perhaps through the rest of the fiscal year (it will depend on usage for FB-1 through FB-3).  However it will return to the prior cut off date by November of this year.

FB-4 India:  Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Mr. Oppenheim predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Mr. Oppenheim anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

Moving on to employment based categories:

EB-2 and EB-3 China:   There will be no forward movement in these categories for the rest of this fiscal year (the fiscal year ends on September 30, 2016).  We will have to see what the new fiscal year brings, but hopefully there will be forward movement shortly after the new fiscal year.

EB-2 and EB-3 India:  There may be some moderate movement forward in September, but it depends (see next category)

EB-2 Worldwide:  It is looking increasingly likely that this category will become unavailable in September.  However, since the new fiscal year begins October 1, they will, again, become current on that date.

EB-1 for India and China:  Similar to EB-2 Worldwide, these categories will most likely become unavailable in September but go back to current in October.

If you have any questions leave a comment below or send me an email.  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.

June 2016 Visa Bulletin is Out

In the last week, the Department of State released the June, 2016 visa bulletin,  USCIS has announced which tables they will utilize for this month and Charlie Oppenheim, the Department of State employee in charge of immigrant visa numbers, issued guidance for the coming months.   Below is a summary of the relevant points for all three of these documents.

Family Based Cases

There was some slight forward movement in some categories, but not much.  The largest movement was a backlog in the F4 category (Brothers and Sisters of US Citizens) for India and Chine.  India dropped from 2003 to 2001, and there is little hope of forward movement until the next fiscal year.  There has been high demand across the board in this category, and this is what is causing the retrogression.  China went back to January of 2013, about a seven month retrogression.  Again, high demand has caused the retrogression, but, in the case of China, there may still be some forward movement this fiscal year – depending on usage.

Employment Based

EB-1:  While EB-1 remains current across the board, it should be noted that there us unusually high usage of EB-1 numbers this fiscal year.  According to a recent update by Charlie Oppenheim this may result in corrective action later this fiscal year.

EB-2:  China will retrogress to January 1, 2010 (as will China EB-3).  Since EB-2 and EB-3 for China will be at the same date for the rest of the fiscal year (most likely) this should stop the upswell of downgrades from EB-2 to EB-3.

India is also retrogressing, but much more severely.  India will be at October 1, 2004.   There is a large amount of usage for EB-2’s in general, meaning that there most likely will not be any “unused” numbers for other countries that could be given to India.  This, in conjunction with the number of EB-3 cases that have moved up to EB-2s, has led to this need for retrogression.  However, Charlie Oppenheim, in his latest update, said this date could move forward if more EB-3 India cases are adjudicated, alleviating the burden of older EB-3 priority dates moving up to EB-2.

It does not appear that the EB-2 worldwide category will be retrogressed at this time.

EB-3:  As stated above, China has retrogressed to 2010.  India, on the other hand, moved forward slightly to September 22, 2004.

Worldwide held steady at February 15, 2016.  Charlie did not indicate anything about what the future holds for EB-3 Worldwide numbers.  If  we get an update on this we will certainly let you know.

USICS

USCIS has, once again, decided that the final action table should be used for both Family based and Employment based green cards.  This is frustrating to not only attorneys and their clients, but also to the Department of State.  The only way they can get a good handle on what the actual backlogs are for both EB-2 India and China and EB-3s for everyone, is if those in the backlog are able to file their adjustment of status applications.  If USCIS would utilize the Dates for Filing Table, it would give DOS the visibility they need to accurately predict usage and would prevent these wildly swinging priority date movements.  Alas, USCIS does not look like they will employe these dates any time soon.  This is unfortunate and shows that USCI was not serious about reforming the current visa processing, as if they were, they would at least explain why they are failing to utilize the Dates for Filing and helping the DOS get more visibility into these issues.  We will certainly update you if there is any change in this area.

If you have any questions leave a comment below or send me an email.  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.