The EB2 Backlog Analysis for India and China in the Visa Bulletin

The U.S. Citizenship and Immigration Services (USCIS) has updated charts of pending employment-based (EB) adjustment of status (I-485) cases. These charts provide precise details of the numbers of I-485 cases currently filed and pending with the USCIS by year and month of priority date, and country of chargeability. They provide a helpful picture of the pending demand for the limited immigrant visa numbers in each EB category.

In the EB2 category, historically, only India and China regularly experience cutoff dates in the Visa Bulletin. This is reflected in the volume of pending cases in EB2 for all countries other than India and China. There are enough visa numbers available to meet demand and, thus, there is not a large volume of pending cases.

These cases can be routinely processed without delays due to visa number issues. Thus, there are only slightly more than 3,300 EB2 I-485s from countries other than India, China, Mexico, and the Philippines. Most of these cases have priority dates between 2005 to 2010.

This contrasts sharply with the volume of cases pending in EB2 for nationals of India and China. China has 16,630 pending EB2 cases, most having priority dates between 2005 and 2007. India has more than twice as many as China, with slightly more than 39,000 cases pending. Of these, most have priority dates that fall between 2005 and 2007.

When the current pending cases for EB2 India are compared to the chart provided in our October 2009 article, there is a noticeable change. The older charts show more than 6,000 pending EB2 India cases with priority dates in 2004. The newer charts reflect only about 300 such cases, and fewer than 300 with priority dates of earlier than 2004.


http://www.greencardapply.com/news/news10/news10_0627.htm

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The Standards for Prevailing Wage Determination and the Employment-Based Immigration

The Standards for Prevailing Wage Determination and the Employment-Based Immigration

In employment-based nonimmigrant visas and immigration processes, the standards for prevailing wage determination are critically important in that the identical prevailing wage which is required for certain foreign workers applies to all the cities, villages, and counties or other local entities, for a given metropolitan area.

The change of work site for the same employer as affected by the employer's relocation within the metropolitan statistical area is not a 'material' change under the immigration regulation and does not affect the non-immigrant's current employment-based nonimmigrant status, and approved labor certification or immigrant petitions, even though the rules require either report of the change of address for the employer when extension of their nonimmigrant status is filed with the same employer or amendment of the approved I-140 petition.

Additionally, some outlying areas can be included or excluded in the metropolitan statistical area depending on the standard and definition of the metropolitan area or metropolitan statistical area. In 2009, a committee published in the federal register its recommendation for the new standards of metropolitan area and metropolitan statistical area of 2010 to change the decade-old standards of 2000.

After a careful study and consideration of the comments which had been received, the White House OMB has finally decided to accept the recommendation as the new standards for determination of metropolitan statistical areas. This determination will be published on Monday, 06/28/2010.

Considering its impact on the employment-based immigration practices, practitioners, employers, and foreign workers may review this new standards which are incorporated in the 2009 federal register notice. Readers may revisit our report in 2009 to review the 2009 recommendation.

http://www.greencardapply.com/news/news10/news10_0628.htm

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Issue of I-485 Applicants Returning from Overseas Trips

Issue of I-485 Applicants Returning from Overseas Trips in Unlawful H/L Visa Status Without a Valid Advance Parole: When H-1B and /L-1 professionals and dependant family members in H-4 or L-2 make an overseas trip and return on such nonimmigrant visa status when they are no long in lawful H/L visa status, they are subject to potential denial of I-485 applications on two different grounds unlike those who use and return to the U.S. on a valid Advance Parole.

When it comes to the impact of unlawful H/L nonimmigrant status at the time of returning from the overseas trip on the pending EB-485 applications, the key issue remains denial of EB-485 applications on the ground of the unlawful H/L visa status or unauthorized employment when they return using a valid Advance Parole.

Meanwhile, those who return to the country in H/L visa status without a valid Advance Parole can be subject to denial of the pending EB-485 applications on one another ground, to wit, abandonment of his/her 485 application because under the immigration rule, the returning of 485 applicant can keep his/her 485 application only when they entered in "a lawful H/L status if they enter on H/L visa status without an Advance Parole that had been issued prior to his/her departure from the U.S.

The most bright-line situation can involve layoff or termination of H or L employment and withdrawal of the H-1B or L-1 petition by the employer. Since the rule requires that the alien was returning to resume the H/L employment to keep the pending I-485 application, return of such alien in H/L status presents a potential risk of denial of I-485 application not only on the violation of the nonimmigrant status but also on the ground of abandonment of pending I-485 application.

When it comes to the first ground for denial, since the alien will be eligible for 245(k) benefit if the violation did not last longer than 180 days, the first ground can be overcome. Second ground of abandonment of application is a different story. Had the alien returned on an Advance Parole in an identical factual situation, he/she would be required to deal only with the first issue and not the second issue.

http://www.greencardapply.com/news/news10/news10_0707.htm


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President Obama CIR Speech and Prospect for CIR Legislation

The President and Hispanic leaders have apparently been under tremendous pressure from the Hispanic community and Mexico on the Comprehensive Immigration Reform (CIR) legislation.

The Obama speech appeared to be a by-product of such political pressure and a political statement. As for the legislative agenda for the 111th Congress, there is practically no room for the Congress to accommodate and complete this legislation before the end of December 31, 2010.

The practical question on success of this legislation within this calendar year lies not with introduction of such CIR bill within the year but successful passage of the bill within the year. Implicitly, this has been admitted both by the Democrats and the Hispanic leaders. However, it does not translate into the conclusion that the Obama speech was meaningless and purely a political gimmick.

There were numerous reports in the Washington political circles that the Democratic leaders were accepting early CIR legislative agenda for 112th Congress that will open in January 2011. In order to achieve such agenda, the CIR legislation momentum will have to be continuously built this year. In this regard, other than calculation of November election, the Democrats appear to be moving into a right direction. Question then remains: Whether this strategy can survive the November election. It thus translate into a more substantive question of whether the Democrats will be able to keep majority seats in both the Senate and the House after the election.

http://www.greencardapply.com/news/news10/news10_0708.htm


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Green Card application in EB2

Question:

I am consider the Green Card application in EB2. What are the advantages of EB2 - National Interest Waiver over the regular EB-2 based on the PERM Labor certification?
--------------------------------------------------------------------------------

Answer:

To get a Green Card under EB2 - National Interest Waiver category, there are two independent steps. The first step is to file form I-140 along with a petition to verify that your employment has enough national interest to waive the otherwise required Labor Certification (PERM). After your I-140 is approved, you may file for Green Card using form I-485.

Many people prefer NIW for several reasons. First, you can self-petition. This means that you can file for Green Card
by yourself, without the consent or knowledge of your employer. Second, the NIW requirement is easier than EB-1 Alien of Extraordinary Ability. Third, with NIW, you can skip the Labor Certification process (PERM). Filing a Labor Certification is a burdensome and time consuming process.

http://www.greencardapply.com/question/question10/question10_0503.htm


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President Barack Obama has voiced his support for a comprehensive immigration reform

President Barack Obama has voiced his support for a comprehensive immigration reform (CIR) proposal announced on April 29, 2010. The proposal, known as Real Enforcement with Practical Answers for Immigration Reform (REPAIR), is a framework of ideas for immigration reform. This proposal has not yet been introduced in the form of a proposed bill, but is potentially a significant step toward, establishing a framework and consensus for CIR.

The President's statement emphasized the responsibility of the federal government for immigration law enforcement and border security. He referred to the continued failure of federal efforts to fix the immigration system as leaving the door open to inconsistent state and local laws, referring to these measures as "often misguided" - a clear reference to Arizona's recent controversial immigration enforcement measures.

The President praised the REPAIR proposal, characterizing it as bipartisan and grounded in principles of responsibility and accountability. The President's statement focused primarily on problems of illegal immigration, rather than legal immigration, in supporting tougher penalties for employers of unauthorized workers.

The twenty-six page REPAIR proposal contains an eight-year timeframe for addressing matters related to undocumented foreign nationals in the United States. It involves a registration process for undocumented foreign nationals, an interim legal status, followed by potential eligibility for adjustment of status to permanent residence. The eligibility of undocumented foreign nationals to obtain permanent residence is intended to occur after current family and employment permanent residence backlogs are cleared. The proposal contains provisions to facilitate clearing the existing backlogs within eight years.

The proposal sets benchmarks for securing the border during the eight-year period following enactment of CIR. The measures include increased Customs and Border Patrol (CBP) officers and Immigration and Customs Enforcement (ICE) personnel. In addition to personnel increases, the proposal supports additional technology, weapons, training, vehicles, and equipment.

The proposal provides for the creation of a commission to monitor border security and issue recommendations for additional legal changes. At some point, when border control has been more fully addressed by the federal government, state and local governments would not be permitted to enact immigration laws.

The enforcement provisions include expanded entry / exit systems to monitor those who overstay their permitted admission to the United States. It creates new crimes for certain immigration-related document fraud and increases immigration consequences for fraud and misrepresentation. Other measures target human smuggling and trafficking in humans and provide for additional biometric screening at ports of entry.

As part of the immigration enforcement efforts aimed at employers, the proposal includes biometrics in the employment verification system requirements. The changes involve a fraud and tamper resistant social security card containing a photograph and biometric data. Employers will have to verify employment eligibility for all newly hired employees using the electronic employment verification system.

As mentioned, the eligibility of undocumented foreign nationals to normalize their status would occur after clearing existing family and employment backlogs. As most of our readers know, these backlogs exist due to strict annual limits on the numbers of foreign nationals who can obtain permanent residence. This is not simply a delay in processing cases or paperwork.

Under the proposal, there would be new, stricter requirements for H1Bs. These provisions include limiting the number of H1B and L-1 employees permitted for a single employer.

As part of the effort to clear out the long backlogs in employment-based permanent immigration, the proposal would eliminate per-country limits. These quotas cause significantly greater waiting times for applicants from countries with high rates of immigration, such as India and China.

Another significant change is the authorization of the recapture of unused immigrant visa numbers from prior years. This would add to the available visa numbers and allow for clearing backlogged cases. Separately, there are revised provisions for temporary lower-skilled and agricultural workers.

The proposal intends to resolve the family-based case backlogs over the eight-year period. To accomplish this goal, spouses and children of lawful permanent residents will be reclassified, and the per-country caps will be raised. After the eight years, the limits will return to their current levels.

http://www.greencardfamily.com/news/news2010/news2010_0608.htm


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USICE Policy Guidance on OPT, 17-Month STEM Extension

USICE Policy Guidance on OPT, 17-Month STEM Extension, and H-1B Cap-Gap Rules, as Revised 04/23/2010: The USICE has been implementing its revised policy guidance since 04/23/2010 for OPT students without much publicity and controversy.

Following are the changes which they made to the Policy Guidance which was released earlier years:

Provides current dates related to H-1B petitioning for 2010 (and removes information related to previous years)

Amends the text to past tense, as applicable.

Replaces the term OPT STEM extension with 17-month extension.

Deletes reference to the public comment period for the IFR, which has closed (section 1.2). Adds text related to school filing of courses of study for CIPs, for

STEM designation of CIPS and for DHS approval of STEM CIPS for the 17-month
extension of OPT (section 1.3). Adds text on other resources available related to the IFR (section 1.4)

Refines procedures for filing for OPT after the program end date (section 5.2)

Deletes 10 day exceptions to the time that counts for unemployment during OPT at the EAD start date and between jobs. SEVP will need approval for such exceptions through another proposed rulemaking. (sections 7.1.6 and 7.1.7)

Removed restriction that employment during the 17-month extension must be paid employment. SEVP will need approval for such a restriction through another proposed rulemaking. (sections 7.2.2 and 7.2.3)

Deletes dates for wait-listing for this year. SEVP has been notified by USCIS that there will not be a waitlist utilized as a part of the FY 2011 H1B Cap filing process (section 9.1.1).

www.greencardapply.com/news/news10/news10_0606.htm


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The fiscal year 2011 (FY11) H1B cap season continues to be open

The fiscal year 2011 (FY11) H1B cap season continues to be open as of the end of May 2010, with a low rate of case filings.

FY10 was unusual when compared to the two years prior, as the cap was not reached in the first days of filing. The FY10 cap season ended December 21, 2009, when all the cap numbers were used.

The FY11 filings are even lighter than in FY10. As of the most recent count, dated May 21, 2010, only 19,600 cases have been filed against the regular cap. The advanced-degree cap count as of the same date is 8,200. The FY10 count, in approximately the same timeframe, included more than twice as many filings against both caps. This decrease is believed to be tied to the economy as well as to the chilling effect of the current USCIS adjudication trends and standards.

The bad news, for some, is that it has become more difficult to obtain H1B approvals. However, it is possible to obtain H1B approvals for well-documented cases. It is necessary to provide clear evidence regarding the position to be performed, the employer-employee relationship, and, in some cases, general, overall compliance with the H1B requirements on the part of the employer.

Thus, the good news is that the difficulty in obtaining approvals, combined with the current economy, translates into ample cap number availability, as of this writing. Of course, getting an approval will require a complete and detailed H1B petition filing on behalf of a qualified candidate. www.greencardapply.com/news/news10/news10_0605.htm


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