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.

National Interest Waiver: You May Be Surprised

Does the National Interest Waiver (a self-sponsored green card application) require that you be working for or funded by the US Government?  The short answer is no, it most certainly does not.  thIs it as hard as the Extraordinary Ability application?  Again, the short answer is no, definitely not.  The National Interest Waiver is actually a very appropriate application for many researchers and others who either cannot be or do not want to be sponsored by their employers.  It allows you to sponsor yourself, and to change jobs and employers fairly easily throughout the process.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.  While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.    In fact, many of our clients may have 30-50 citations total, they may have anywhere from 2-5 papers, or more.  Sometimes they have peer reviewing activities, sometimes they do not.  Sometimes they have oral presentations, sometimes not.  Every case is different and has to be judged on the totality of the evidence to show whether the evidence shows that the impact of your work has been substantial.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this application and your ability to qualify.

Legislative Update: Restrictive H-1B Bill Introduced

images.jpegThis month has seen the introduction in the Senate (by Senator Cruz (R)) and the House (by Rep. Mo Brooks) of a bill to several limit the H-1B visa.  These bills would set a minimum salary of $110,000 for ALL jobs under the H-1B umbrella.   In addition, if one employee in the same or similar position has been displaced, furloughed, terminated without cause or was otherwise separated without cause in the last two years (or if an employee is so separated within 2 years of filing the H-1B), that employer cannot use the H-1B program to hire someone in that position (or, they need to end the H-1B if already began).  Additionally, the fees for the program would be raised.  Employers with over 25 employees would have to pay $10,000 for the training fee as opposed to $1500, and the fraud prevention fee would raise from $500 to $2000.  H-1Bs would be limited to those with Ph.D. degrees or higher (those with a Bachelor’s or Masters would have to show that they have at least 10 years experience in addition to their degrees), and those who received their degree’s in the US would have to be given precedence by the employer over those with foreign degrees.   Lastly, the bill would get rid of any and all OPT for students on an F visa but would also require that ALL H-1B applicants have at least 2 years experience in the field.

At least part of the push at this time are the allegations against Disney of its misuse of the H-1B visa system.  For those who are not familiar with these allegation, former employees are accusing Disney of replacing US Citizen workers with foreigners under the H-1B system and of forcing those same US Citizen workers to train the H-1B employees before leaving their positions.  It should be noted that Disney denies these allegations and this case has yet to go to court.  However, even if these allegations are true, and as horrible as they are, there are better ways of handling these violations.  First and foremost, perhaps if congress actually allocated funding to USCIS to enforce the current H-1B regulations, they would have more officers to visit work locations and investigate companies so as to be able to stop these violations before they begin, or soon thereafter.  Even limiting the total number of H-1B visas a company can file for in a given year would be a better idea than this bill.

The problem with this bill is that current law already makes it a clear violation if a company uses the H-1B visa process to displace a US worker.  While not spelled out quite so severely as the current law, US employers cannot layoff their workforce and replace them with H-1B workers, this is not allowed.  As stated above, providing funding for USCIS to ensure compliance with this requirement would help to stop such abuses.  However the bill before congress does NOT provide such fundingSimilarly, there is already in place what is called the prevailing wage requirement.  US employers are already required to pay a minimum wage to workers, and this wage is determined by market conditions for the particular position in the particular geographic region in which the employees will work.   While currently US Employers are not required to file a formal request to the Department of Labor for its ruling on the prevailing wage, this is another way that Congress could use existing law to tighten requirements – require a prevailing wage be filed for H-1Bs.  This would keep the current fairness inherent in determining a wage based upon the actual job and physical location of the work, as opposed to trying to slap a one-size-fits-all wage that will limit the H-1B to primarily large employers, who are the ones who abuse the system.

Further issues relate to limiting the H-1B program to just Ph.D.’s and eliminating OPT.  First, eliminating OPT, while at the same time requiring 2 year experience and forcing a US employer to give a foreigner who received their degree from the US seems contradictory.  How are these recent grads suppose to get the experience?  Go home for two years?  While those who fight immigration saying that it hurts US workers would say “yes” to that question, the vast majority of economists agree that immigration actually helps the US economy and helps US workers (for example see this article).  Denying these students the ability to stay and work in the US, will only hurt our economy, not help it.

Hopefully Congress will not rush to judgement and pass this bill.  Instead, I hope cooler minds will prevail and better legislation, that allows the H-1B visa program to help our economy will be passed.

(image from the Times of India)

Update from DOS on Visa Availability

The American Immigration Lawyer’s Association (AILA) recently talked with Mr. Charlie Oppenheim of the Department of state about visa availability in the coming months.  Mr. Oppenheim is the person in charge of the Visa Bulletin.  Below are some of the highlights of his predictions:

  1. EB-3 China:  The final action dates for China in the EB-3 category will continue to move forward – jumping another 5 months next month.  While Mr. Oppenheim is predicting that there will be a significant number of EB-2 Chinese cases that downgrade to EB-3 (the EB-3 final action date will be 10 months ahead of the EB-2 date in March) so far no significant demand has materialized for the EB-3 Chinese category.  In addition to moving the final action date, the Date for Filing will jump 19 months to May 1, 2015.
  2. EB-2 China:  The Final Action Date for EB-2 China will move forward 5 months in March.  Mr. Oppenheim sees this forward movement continuing unless more demand materializes.
  3. EB-2 India:  More demand is materializing so movement is slowing.  This category will only move about 1.5 months in March, and may move similarly in coming months (depending on demand).  In June the EB-1 numbers will be assessed, and if there are significant unused number, they may begin dropping them down to the EB-2 category which would help EB-2 India dates move forward faster.

Mr. Oppenheim also expressed the sentiment that if USCIS adopted the Dates for Filing for I-140s it would help even out the demand for the EB-3 and EB-2 numbers for China, which are underutilized at this time.

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.

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.

UPDATE: February 2016 Visa Bulletin

As we previously reported, the Department of State released the February 2016 visa bulletin several days ago.  Today, USCIS finally determined which dates (the “final action date” or the “dates for filing” can be used.  Their decision is:

Family Based Cases

You may use the “dates for filing” table to determine if you can file the AOS application.

 

Employment Based Cases

You must use the “final action dates” table to determine if you can file your AOS application.

 

While the above is not a surprise, as it is the same decision the made last month, it is unfortunate that USCIS is still not allowing employment based applications to use the “dates for filing” table.   First, it is clearly more advantageous for individuals to be able to file their adjustment applications earlier.  Second, it would also be advantageous to USCIS as they would be able to get a better handle on how big the backlog is which, in turn, would help make the dates for the visa bulletin more accurate.  Instead, USCIS is more concerned with people being able to file the adjustment “early”, which is short0-sighted on their part.

We will, of course, update you next month as to the March, 2016 visa bulletin.

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.

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 simimages-1.pngple “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.

 

December Visa Bulletin and Update from Mr. Oppenheim

 

images

The Department of State recently released the December 2015 visa bulletin and Mr. Charlie Oppenheim, the person at the Department of State in charge of the Visa Bulletin also recently gave AILA an update on his predictions for future movement of the Bulletin.  I will summarize both of these documents below.

Family Based:

Final Action Date:

Most categories moved forward about 1 months.  The one date to highlight is the F2A Category (Spouses and Children of Permanent Residents) which is now at June 15, 2014.

Application Filing Dates:

No Movement

Guidance:

Here is what Mr. Oppenheim has to say on family based categories:

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Employment Based:

Final Action Dates:

EB-2: The only real movement was India, which jumped from August 1, 2006 to July 1, 2007.  China stayed in 2012 and the rest of the world is still Current.

EB-3:  Everyone, except India moved forward about 1 month.  China moved to April 15, 2012, the Philippines moved to August 1, 2007 and Mexico and the rest of the World moved to September 15, 2015.  Unfortunately India stayed at April 22, 2004.

Application Filing Dates:

No Movement.  USCIS did indicate they would accept I-485 application based upon these dates in December 2015.

In giving his guidance, Mr Oppenheim stated that the forward movement on the India EB-2 numbers is attributable to correcting the large rollback in the dates that occurred at the end of last fiscal year.  Mr. Oppenheim projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. However, this would be the best case scenario, and the actual advancement is likely to be around four to six months at a time. On the downside, this forward movement will most likely spur  EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. Mr. Oppenheim expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

Guidance:

In terms of China, the EB-2 China final action date will remain the same in December 2015 and Mr. Oppenheim does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year.  Since the final action date for EB-3 China is later than the EB-2 China final action date, Mr. Oppenheim expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Mr. Oppenheim expects this rebalancing to occur at some point next year, possibly as early as April.

 

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 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.