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.

Recent PERM Issues resolved by BALCA

dol Recently, BALCA (Bureau of Alien Labor Certification Appeal), the agency that hears appeals when a Labor Certification is denied, has made several important decisions.  This post will describe a couple of the most important decisions.

Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015)

We advise all our clients on the documents that need to be kept.  In that list we include documentation of contact with those who apply for the position.  While this documentation is not listed as a required document that needs to be retained under the statute or regulations, we have seen DOL ask for it before and it is a good practice to keep it.  Now, this is doubly true.

An employer was requested by the DOL during an audit to provide the evidence of his contact with the applicants.  The employer had contacted the applicants by email, but  did not provide such documentation to the officer and the case was denied.  While it should have been a simple matter for the employer to provide the emails in a motion to reconsider, that is not allowed.  Only documentation that is either asked by the officer (for the motion to reconsider) OR information that was unavailable to the employer at the time of the initial request can be included in the Motion to Reconsider.  Instead, the employer appealed the case to BALCA claiming that the documents were not required to be retained by the employer, and, therefore the the employer was not required to provide them to the officer and the case could not be denied on that basis.

While the above is correct, there is a provision that allows the officer to request additional evidence if the request is reasonable and a failure to provide the additional evidence would amount to “substantial failure…to provide required documentation.”  Now, while it is clear that the evidence requested was reasonable, how could it be said that by not providing this information (which is not “required documentation”) could be viewed as a substantial failure to provide required documentation?  According to BALCA it was necessary evidence to determine whether the applicants were rejected for lawful, job related reasons.  I think what BALCA is trying to say is that the officer has a right to have confirmation that what they employer states on the recruitment report actually occurred as reported.  In other words, the officer is not required to trust the word of the employer that it did what it said it did.

DGN Technologies 2012-PER-00423 (September 3, 2015)

In this case, the employer filed a PERM case with the DOL.  The DOL officer sent out a Audit Notification Letter requesting documentation about the recruitment process to the employer.  When the employer did not respond, the case was denied.  In a Motion to Reconsider, the employer argued that it had not received the notice send out by the employer and requested the case be reopened and the notice send out again.  BALCA re-opened the case and ordered that the officer re-send the notification and give the employer the requisite time to reply.

BALCA stated two reasons for overturning the denial:  First, since the Officer had no proof that the document was mailed (outside of its word) and did not provide proof of the mailroom procedures to the judge to show that such procedures would lead one to believe that the document was mailed, that there is no presumption that the document was mailed or received.  Second, the judge stated that even if such documentation were available and there were a presumption that it was mailed and received, it is a weak presumption and the affidavit of the employer that it did not receive the documents, and the lack of motive for the employer to ignore the audit notice, all lead to the conclusion that the notice was not received by the employer.  Therefore, the denial was vacated.

This shows that BALCA is not above requiring the same type of documentation (proof of mailing, etc.) from the DOL as it requires from employers.  But more importantly, it also shows that when there is sufficient indication of honesty, the DOL should trust the word of the employer.  This is in contrast to the above case in which an employer could have serious reasons to mis-represent the reasons for denial of a particular applicant as it could help the case be approved.  Therefore the DOL does not have to rely solely on the word of the employer in that case.

It is always important to remember that PERM cases are difficult not because the procedures are necessarily difficult, but because the Department of Labor is looking for any reason to deny the application.  Even the fact that the employer did not receive a notice from the DOL, is enough for them to deny a case and make you start over from the beginning.  Competent is important for these type of cases.

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 2015 Visa Bulletin – Forward Movement for Some

The Department of State has put out the June 2015 visa bulletin. While family based dates have remained fairly steady (with some backlogs and some slight movement forward) the bigger changes were on the employment side.

1st – Remain current for all countries
2nd – Remain Current for All Areas EXCEPT China is now in June 1, 2013 a jump of 1 year and India is at October 1, 2008, a slight movement forward of about 1 month
3rd – All countries moved forward to February 15, 2015, about 1 month forward movement, EXCEPT China, which is at September 1, 2011 (forward movement of about 4 months), India which is at January 22, 2004 (no movement) and Philippines, which moved back 2 years to January 1, 2005.
Other Workers: Same as 3rd preference except China is at January 1, 2006.
5th – China remains backlogged at May 1, 2013 while the rest of the world is current.

Overall, China moved forward quite a bit in the 2nd preference category (which includes the NIW application) which is good news. Unfortunately, India remains backlogged quite heavily although it did have some forward movement in the 2nd preference category.

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.

The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence inth
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

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 general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

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 status and your ability to qualify.