Immigrant – Immigration Briefs

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.

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.

USCIS Proposes Increases to Filing Fees

USCIS has proposed a new fee structure – raising certain fees, keeping certain fees at their current level, and even lowering some fees. As part of its bi-annual review, USCIS determined that what it was receiving in user fees was insufficient to allow it to continue its current operations (USCIS receives very little from the general budget (and what it does get is for special projects) and is almost entirely funded by user fees).

The proposed increases that we feel are of importance are as follows:

FORM NUMBER	PREVIOUS FEE	NEW FEE
I-90 – Replace PR Card	$365	$455
I-129 – Nonimmigrant Worker	$325	$460
I-130 – Relative Petition	$420	$535
I-131 – Re-entry Permit	$360	$575
I-140 – Employment based Green Card Application	$580	$700
I-290B – Appeal	$630	$675
I-485 – AOS	$985	$1140
I-539 – Extend/Change Status	$290	$370
I-751 – Remove Conditions	$505	$595
I-765 – Work Authorization	$380	$410
N-400 – Naturalization	$595	$640
N-600 – Cert. Of Citizenship	$600	$1170

It should be noted that the above do not include the biometrics fee of $85 (which will remain the same) where needed. In addition to the above, the USCIS Immigration Fee (paid when you enter the US on an Immigration Visa) is being raised from $165 to $220.

USCIS does do its best to keep its fees down on most of the important applications. The application fees that were raised the most are those related to the Alien Entrepreneur Visa. The I-526, Application for Alien Entrepreneur went from $1500 to $3675 and the I924 Application for Regional Center Designation went from $6230 to $17,795. There is a sixty day comment period after which USCIS will publish the final rule with a date for implementation of the new fees. We will, of course, update you when that happens.

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.

February 2016 Visa Bulletin -Not Much Movement

images The Department of State just came out with the Visa Bulletin for February 2016. Unfortunately there was not much movement on either the family or employment front. Below we summarize what movement there was.

Family Based Immigrant Visas:

Final Action Dates: Most categories moved forward between 1-2 months.

Dates For Filing: Again, they moved 1-2 months forward across the board.

Employment Based Immigrant Visas:

Final Action Dates: EB-2 – China moved forward slightly from February 1, 2012 to March 1, 2012. India moved forward a good bit from February 1, 2008 to August 1, 2008. a jump of 6 months. EB-3 – Worldwide and Mexico did not move and are still at October 15, 2015. China moved from July 1, 2012 to October 1, 2012. India moved from May 15, 2004 to June 15, 2004 and the Philippines moved from November 1, 2007 to January 8, 2008.

DatesFor Filing: There was no movement on these dates.

Dates Used by USCIS:

As you know, USICS has stated that they will inform the public each month as to whether the Final Action Dates or the Dates for Filing can be used by the public in terms of determining when you can file the I-485.

Last month (for January, 2016), USCIS stated the following:

Family Based Cases: Dates for Filing
Employment Based Cases: Final Action Dates

For this month, USCIS has not yet stated what they will be following. Hopefully this information will be released shortly. As soon as it is we will update you.

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 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.

December Visa Bulletin and Update from Mr. Oppenheim

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.

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).

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.

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.