Green Cards – Immigration Briefs

October Visa Bulletin Released

Today, USCIS released the October Visa Bulletin. The big changes are the EB1 coming current (as well as EB2 Worldwide) and a big jump forward in the F4 (siblings of a US Citizen) category for Worldwide, China and, to a lesser extent, India. Below is a summary of the developments this month:

Employment Based:

EB1: As predicted, the EB1 category went current across the Board, including for India and China.

EB2: The Worldwide category went current as well. EB-2 for China is now at May 22, 2013 and India is at September 15, 2008. China only moved forward about 1 week and India moved forward about 3 weeks.

EB3: Worldwide remained Current. India stayed at October 15, 2006. China, on the other hand jumped up to January 1, 2014.

Family Based:

F1: Worldwide, China and India all jumped to December 22, 2010. Mexico moved forward one month to March 1, 1996 and the Philippines remained at January 1, 2007.

F2A: Worldwide, India, China and the Philippines moved forward about 3 weeks to October 22, 2015. Mexico also moved forward about 3 weeks to October 15, 2015.

F2B:Worldwide, China and India moved forward about 1 week to November 9, 2010. Mexico moved forward about 1 week as well to July 15, 1996 and the Philippines staid at January 1, 2007.

F3:Worldwide, China and India moved forward about 2 weeks to July 22, 2005. Mexico moved forward about 2 weeks to April 22, 1995 and the Philippines moved forward about 1 week to February 22, 1995.

F4:Worldwide and China jumped forward about 2 years to May 8, 2004. India jumped a little less (about 1 year) to October 1, 2003. Mexico moved forward about 2 weeks to October 1, 1997 and the Philippines staid at June 1, 1994.

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

unknown The 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

Unknown The 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?

We 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.

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.

May 2016 Visa Bulletin Released

The visa bulletin for May 2016 was released and there has been very little movement. I have included some highlights below followed by the actual charts. Please note that, for this month, USCIS has indicated that they will be using the final action dates for both employment and family based cases, so these are the only charts we will discuss.

Family Based:

F1: Everywhere moved forward by about 2 months.
F2: Forward movement of about 1 month.
F3: Forward movement of about 2.5 months.
F4: Forward movement of about 1 week.
F5: No movement

Screen Shot 2016-04-26 at 4.17.53 PM.png

Employment Based:

EB-1: Current everywhere
EB-2: China – no movement, still at Sept. 1, 2012; India – Slight movement to Nov. 22, 2008 (about 1 month); The rest of the world is current
EB-3: China – No movement, still at August 15, 2013; India – Slight movement to Sept. 1, 2004 (about 1 week); The reset of the world is at February 15, 2016 which is the same as last month.

Screen Shot 2016-04-26 at 4.18.05 PM.png

Please let us know if you have any questions about the above charts. And, as always, please remember that this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

REMINDER: Webinar January 27th at 12:00 pm

WHEN: January 27, 2015, 12:00 pm

WHAT: A fee seminar detailing the self-sponsored green card application requirements for the National Interest Waiver (EB-2) application and the Extraordinary Ability (EB-1) application. We will also touch on the various types of evidence that can be submitted to meet the regulations and statutory standards used by USCIS in adjudicating these applications.

HOW TO REGISTER: Click on this link or email webinar@leavyfrank.com.

PLEASE NOTE: registration is limited and space is filling up quickly.

Does Hiring an Attorney Increase Your Chances of Success with USCIS?

I have had many potential clients ask me this question, and I wish I could give a simple “yes” or “no” answer. There are two things I can say for sure. First, just the fact that you have an attorney, while it does not make it more likely, in and of itself that the case would be approved, it does make sure that the officer is aware that they cannot (or should not) play games with your case (try intimidation tactics, raise issues not supportable by the statute or regulations, etc.). Second, hiring an attorney can, in most cases, help you get your case together and filed quicker than you would on your own, help to ensure that USCIS will get all information that they need up front to make their decision, and help to ensure that the application is presented in a way that USCIS prefers. All of these things can make it more likely that your case is approved, and approved quicker.

Complex cases (All employment based and self-sponsored green cards, H-1Bs, L-1s, E-1s, E-2s, E-3s, Os) can benefit quite a bit by having an attorney. Most attorney’s you hire for these types of cases will have filed many of these cases, so they are more familiar with what USCIS is looking for, especially in terms of what documents help and what documents hurt your chances of success. Similarly, they are more aware of how USCIS likes the case to be organized, and how it can be organized to prevent (as much as possible) the USCIS mailroom from loosing documents. A good attorney will also be able to help in terms of ensuring that the best evidence is put forth first, as opposed to evidence that, while it may seem important, does not impress USCIS and could, because it is put up front, obscure the better evidence in the packet.

Some other types of cases, such as family based cases, may not benefit quite as much from an attorney as generally, these types of case are more straight forward. However, there are still a couple of considerations to think of. First, many questions on the forms are not clear and easy to make mistakes on. Sometimes this is fine, but in other cases, it could lead to major issues as USCIS could decide that you are trying to commit fraud or make misrepresentations on major issues (or, at least, what they consider a major issue) to get a green card. Second, when more complex issues arise (crimes, time in the US out of status, illegal work, illnesses, etc.) it may be best to get an attorney to help sort out what they law is, and how these actions can affect your eligibility. Lastly, generally an attorney can help get the application together and filed quicker and can usually assure that all required documents are submitted with the application, preventing potential RFEs down the road (although these cannot always be avoided). In addition, an attorney could certainly help if any other issues arise during the case.

Overall, I would say you are certainly well served to meet with an attorney about your case to determine how they can help you with your case, especially if your goal is to get it filed as quickly, and easily as possible.

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 2016 Visa Bulletin Update

The Department of State issued its visa bulletin for January of 2016. The following are the highlights in terms of movements forward and backwards of priority dates:

Family Based:

Final Action Dates: For most of the world (including China and India), the dates moved forward in all categories by about 1 month (except spouses and children of Permanent Residents (F2A) which moved forward 2 months to August 14, 2014). The Philippines and Mexico each moved forward around 1 month (or less) in all categories.

Dates for Filing: For most of the world (again, including China and India) dates moved forward by about 3-4 months, with the F2A category moving to June 15, 2015. F2A jumped about 6 months to December 15, 2010. The Philippines and Mexico again moved forward only about 1 month (or less) in all categories.

Employment Based:

Final Action Dates: EB-1 remained current for all countries. EB-2 is current for all countries except China and India. China remained at February 1, 2012. India moved forward about 8 months to February 1, 2008. For EB-3, world-wide numbers progressed about 1 month to October 1, 2015. China progressed about 3 months to July 1, 2012. India moved forward about 1 month to May 15, 2004 and the Philippines moved forward several months to November 1, 2007.

Dates for Filing: These were the same in January as they were in December EXCEPT for one change, EB-3 Worldwide moved to January 1, 2016.

USCIS Reaction:

USCIS has agreed to use the Dates for Filing for family based application, so those whose priority date allows it can file their Adjustment of Status application based on those dates.

USCIS will NOT allow use of the Dates for Filing for Employment Based application. They did not indicate why, or give any clue as to the issue. However, you can only file the adjustment application based upon the Final Action dates.

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.