January Visa Bulletin Released

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The January 2014 Visa Bulletin was recently released by USCIS last week.   Perhaps the most notable movement was for the worldwide EB-3 and China and Mexico EB3 numbers.  In all three of those cases, the priority date moved up almost 1 year to April 1, 2012.  The Philippines moved forward only one month in this category to February 15, 2007 and India did not move at all, staying at September 1, 2003.

For EB2 movement, the worldwide, Mexico and Philippines numbers stayed current.  China moved forward by one month to December 8. 2008 and India again stayed at the same date, November 15, 2004.   As stated in our previous posts, chances are India will not see any movement until later in the fiscal year.

In terms of family based visas, the Family Preference 1 (Unmarried Sons and Daughters of US Citizens) saw a little movement to December 8, 2006 for Worldwide numbers, China and India and the Family Preference 2A (Spouses and Children of Permanent Residents) stayed at September 8 , 2013 for all areas except Mexico which is still at September 1, 2013.  Likewise the Family Preference 2B (Unmarried Sons and Daughters of Permanent Residents) also stayed the same at June 1, 2006 for All areas except Mexico and the Philippines, both which are extremely backlogged in this area.  Family Preference 3 (Married Sons and Daughters of US Citizens) and Family Preference 4 (Brothers and Sisters of US Citizens) both moved forward about 1 month to April 15, 2003 and October 1, 2001 respectively (except for Mexico and the Philippines, both of which are extremely backlogged in this area).

For those interested, the visa bulletin is released every month by the Department of State and is available at this page.

Image courtesy of digitalart at FreeDigitalPhotos.net

I want a green card but I am not in the US. Can I get one?

This topic has come up with several of our clients recently, those wanting to hire people not in the US, thosecurrently in the US who needed to leave because of a lost job or because they wanted to take ashort-term job opportunity, and those who were in their own country already and wanted to come to the US without having to necessarily get a temporary visa.  The one thing most of these people had in common was most of them had a friend who told them that they needed to be in the US to get a green card (spoiler alert:  this is not true) . Because of this upsurge in questions on this issue,  it seemed wise to put the information out there for those interested.
Employer-Sponsored Applications:
If you are being sponsored by an employer you do NOT need to be in the US during the entire processing of the application (until your immigrant visa is approved, that is).  The employer can perform recruitment (if needed), file the labor certification, and even file the I-140, all without your presence in the United States.  This holds true for BOTH

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PERM sponsorship and Outstanding Researcher applications.  There is no requirement that you are either physically present in the US or presently working for the employer when being sponsored by an Employer.  Of course, once the Immigrant Visa is approved and you are in the US, you should begin working for the employer.
The way the process would work is that once the I-140 (Petition for Alien Worker – the application to USCIS stating that an employer is sponsoring you and what type of petition is being filed (Outstanding Researcher, PERM for an advanced degree, etc.) is approved, that approval will be sent to the National Visa Center (NVC) for preliminary processing. The NVC makes sure you complete all forms, send in all necessary documents and pay all needed fees.  Once the NVC confirms that all the forms, documents and fees have been received, they send the application overseas to the US Consulate listed on the I-140 application for an immigrant visa interview.  At this interview it will be important to show that the employer is still willing to employee you at the wage level required and in the position you were sponsored for.  Usually this is in the form of a current letter from the employer.  Assuming you are able to provide the required documents, the Consulate will issue the immigrant visa.  Once issued, you need to enter the US within 45 days.  Once you enter the US you are a permanent resident immediately, and will receive a stamp in your passport so indicating.  You will receive the actual card in the mail usually within about 30 days.
It is important to keep one thing in mind here, although as soon as you enter the US you are a permanent resident, if you fail to begin working for the employer that sponsored you, this could be construed as fraud and could jeopardize your green card.  USCIS looks at your intent here and you want to be careful not to present such a case.  We will discuss this issue more in a later blog post.
Self-Sponsored:
If you are sponsoring yourself for a green card (National Interest Waiver and/or Extraordinary Ability applications) you also DO NOT need to be in the United Stated to process the I-140 application.  You can file the I-140 from overseas and, once approved, receive a green card through the US Consulate in your home country.  The process is quite similar to above.  The difference being that for the self-sponsored application you do NOT need to present an actual letter from a prospective employer.  While that can certainly help, the regulations simply require that you show your intent to continue working in your field.  To show intent, you can give a letter of employment, but you could also give emails from others in your field expressing interest in work or collaborating with you, continued publications, presentations or concerts (depending on your area) in your field plus a letter from you indicating your intent to continue working in your field.  The possibilities are fairly wide in this regard.  The process after approval of your application is the same as discussed above for those being sponsored by employers.
As you can see from the above, it is not only possible to file for, and get permanent residence without being in the United States, it is also just as easy as applying in the United States.  It is true that it may take a little longer to get the green card, but for those who are not in the US and who want to come to the US but cannot get (or who do not want to go through the hassle of getting) a temporary visa to work, this can be a very attractive option.  Please contact me with any questions or comments.

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USCIS Implements its new Customer Verification Program – Be prepared

Today USCIS is implementing its new customer verification program at all local offices.  Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

In this way, USCIS is looking to combat fraud and improve its systems.  Be prepared for the above when you go to an interview or to receive proof of an immigration benefit and build in extra time for this process.

Click here to view the USCIS press release with additional information.

ALERT: New Telephone Scam displaying false USCIS Information

There is a new telephone scam whereby someone claiming to be a USCIS officer is calling people and getting personal information and credit card/bank account information.  Apparently, they are using a technique so that the called ID shown is USCIS.  Be warned, according to UCSIS if a real USCIS officer were to call you they would not ask for ANY payment information or personally identifiable information besides your name. 

E-Verify: Does it work?

E-Verify is the system touted by USCIS to help stop people working who are not in the US in a legal status.  It requires employers to check social security numbers, names, etc. against the social security and USCIS database.   If the databases do not recognize someone, they will send out a flag to the employer, who is suppose to notify the employee and give them a specified period of time to reply and fix the record.  If they employee fails to act, the employer is required to fire the worker.
While this seems like it would be a great system, the question is does it work?  Does it really stop those in the US who are not in a legal immigration status from being able to work?  Does it protect those who are able to work?  Well, according to an article in the Christian Science Monitor (See http://www.csmonitor.com/USA/DC-Decoder/2013/0607/US-immigration-reform-Why-E-Verify-screenings-while-flawed-will-pass/(page)/2), which quotes testimony from Ms. Emily Tulli of the National Immigration Law Center, the answer would be no. In that testimony, Ms. Tulli cited a 2008 research project, which found that “54 percent of unauthorized workers for whom E-Verify checks were run were erroneously confirmed as being work-authorized.”
In another survey of 376 immigrant workers in Arizona, it was found that more than 100 of them had been fired, apparently after the employer got TNC notices and failed to notify the workers about their opportunity to appeal.
“In fiscal year 2012, approximately 100,000 workers [nationwide] likely received erroneous findings from the system and may have lost their jobs as a result,” Tulli said in her prepared testimony. That number of people who lose their jobs in error could rise as high as 770,000 or more if E-Verify is mandated nationwide, she warned.
According to Department of Homeland Security statistics, E-Verify has a 1.35 percent error rate. While this may not seem like much, it resulted in 221,155 “tentative nonconfirmations,” as the DHS calls them, in 2012 alone.
Hopefully the system is improving and hopefully less people are having issues, but, unfortunately, this is not something USCIS or Congress looks into or tracks.  They do not seem to care about these issues and are not actively working on fixing the system, or at least tweaking it to make it fairer and better.  I do understand the need for such a system, but until it actually works, mandating the system would be a mistake.

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August 2013 Visa Bulletin Releases – EB2 for India move up to 2008

The Department of State has released the latest visa bulletin for August 2013. In that bulletin there have been several significant movements. First, in terms of family based applications, the F2A category – spouses and children of permanent residents, has come current. Second, the EB-2 for India has moved forward to January 1, 2008. It should be noted that both of these moves were to stimulate demand. DOS has stated that there are many cases in the backlog in both categories but that people are not filing the I-485s and completing the process, so they have moved the dates up to use up the remaining visas for this year. With that in mind, they have stated that the dates will retrogress sometime after September, if not before.

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July Demand Data for EB2 and EB3 cut-off dates

The Department of State has once again released the demand data used to determine the July cut-off dates for the EB-2 and Eb-3 category. It is important to note that there are additional cases outside of these numbers that have not been counted (those who have already filed an I-485, for instance, are not included. Nether are any new cases that have been filed as of the cut-off date they have used (June 7, 2013) to determine the July Visa Bulletin).

Currently, the DOS lists the following demand in the EB-2 category (please note, this is cumulative demand as of January 1, 2013):

India: 43,100 cumulative demand

China: 5,100 cumulative demand

All Other: 200 cumulative demand

For the EB-3 category, the following is the demand (same dates):

India: 41,175

China: 75

Mexico: 25

Philippines: 5,500

All Other: 400

This will give you an idea as to why the July Visa Bulletin has the cut-off dates that it does.

USCIS begins returning H-1B applications not Selected in Lottery

USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.

We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.