July 2016 Visa Bulletin and Check-In with DOS

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

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

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

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

 

Employ.

Based

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

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

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

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

Moving on to employment based categories:

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

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

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

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

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

June 2016 Visa Bulletin is Out

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

Family Based Cases

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

Employment Based

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

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

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

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

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

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

USICS

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

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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.

Self-Sponsored Green Cards: What are your major findings?

Nobel-PrizeInvariably when working with scientists it becomes apparent that USCIS’s definition of your “most important” work and our client’s definition of their “most important” work are very different.  This leads to issues over what findings should be discussed in the memo and highlighted for the USCIS officer to review.  Scientists, for good reason, feel that the findings with the most scientific merit should be discussed most prominently.  However, this is often not the correct direction to go if you want USCIS to approve the application.

First, it must be remembered that the US officer reviewing the application is not a scientist.  They do not understand, nor will they be able to understand, what is “important” in a scientific way.  They can only determine importance through the other evidence presented in the application.  So, in short, it can accurately be said that USCIS is NOT concerned with the scientific merit of a finding, but rather, is concerned with the “objective evidence” for a finding that shows it has scientific merit.   While this may sound similar, it is very different.  Findings that have just been published, for example, will have very little, if any, objective evidence to back them up.   Other findings may be very important to the field, but, for some reason or another, very little objective evidence of this importance exists.  In both these cases, discussing other findings with more objective evidence, even if they are not as “important” based upon their scientific merit, would be the better way to present the case for the best chance of approval.

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.

February 2016 Visa Bulletin -Not Much Movement

imagesThe 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 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.

Free Webinar on Self-Sponsored Green Cards!

We will be hosting a free webinar for those interested in self-sponsored green card (Extraordinary Ability and National Interest Waiver applications).  It will be on January 27th, 2016 at 12:00 pm.  If you are interested you can sign up by sending your name and email address to webinar@leavyfrank.com.  Space will be limited.

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.

So your EB-1 was denied, should you appeal?

imagesWe have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO).  Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money.  However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal.  The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years.  So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials.  The EB-1A category is hard enough to  begin with, with only about a 50% approval rating.  How is it on appeals?  Well, in 2011 there were a total of 146 cases decided by the AAO.  Of those, 137, or 93.9%, were dismissed.   Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision.  In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained.  In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%).  And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so.  However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided).  IN 2011 96.5% of cases appealed in this category were dismissed.  In 2012 94.8% of cases were dismissed.  In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B:  Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area.  In 2011 only 68.8% of cases were dismissed which is actually not bad.  This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW.  This changed rapidly in 2012 and 2013, when the rate of dismissal increased to  97% and 95% respectively.  This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved.  In most cases, refilling the case, either right away or a little while down the road, is usually the best course.  Of course every case is different, and there are certain cases for which an appeal actually makes sense.  Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work.  There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative  (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had).  Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

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.