Indian and Chinese EB-2 Visa Cut-Off Dates

The State Department reportedly notified the USCIS that as of April 11, 2012, it had exhausted Indian/Chinese EB-2 visa numbers for FY 2012 and would not authorize such EB-2 visas to the USCIS. This raises a question for the State Department as to what cut-off dates they will publish for the next several months for Indian and Chinese EB-2 category. If they publish that India/China EB-2 is "Unavailable," the USCIS will not be able to receive any new EB-485 applications no matter how earlier priority dates the Indians and Chinese EB-2 cases have, not to mention their inability to adjudicate and approve pending cases. On the other hand, should they decide any specific cut-off dates for these categories, there arises a legal question as to whether the USCIS can refuse approval of the pending EB-485 applications or new EB-485 applications with earlier priority dates. The situation for May 2012 Visa Bulletin was different in that at the time the May 2012 Visa Bulletin was published, it had no information that the Indian/Chinese EB-2 annual visa allocations have been exhausted. Ideally, after the State Department learned that the visa number had been exhausted, they could have published revised visa bulleting for May 2012, which they opted not to. These two departments learned a valuable lesson from a political and legal disaster during the FY 2007 Visa Bulletin fiasco period. Additionally, the issue involves a more practical stake involved for the USCIS. Hypothetically, should the State Department set a cut-off date for the Indian/Chinese EB-2, the USCIS will be required to continuously receive EB-485 applications from Indian and Chinese professional workers with a priority date earlier than the cut-off date, albeit inability of the USCIS to approve any such pending EB-485 applications regardless of how far back of priority dates one has. This situation will keep the USCIS busy with continuing in-flow of fee funds to support the agency financially without any financial crisis. Imagine what happens if the State Department set the EB-2 visa numbers "Unavailable" for four months! During the four months, they will not be able to receive any new Indian/Chinese EB-2 I-485 applications!? Imagine its impact on the USCIS finance and idle resources!? Very curious of what has been cooked behind the spotlight on this matter between the State Department and the USCIS for the upcoming Visa Bulletins. http://www.greencardapply.com/news/news12/news12_0508.htm www.greencardfamily.com www.greencardapply.com

Employers Face Increasing Audits and Supervisory Recruitment in PERM

The Office of Foreign Labor Certification reported in the recent stakeholder meeting that the audits and supervised recruitment would increase. At the time of report, approximately 30% cases faced either audit and supervised recruitment. In a number of cases, after receiving the responses to the audits, the agency has turned the cases into a supervised recruitment track in a number of cases. This trend has resulted in a tremendous delay in PERM processing times and potential denials for the employers that have been picked for such audits and supervised recruitment. Strikingly, such cases have been denied after wasting a tremendous time and expenses for certain incredibly unbelievable "minor" "trivial" "technical" matters. For instances, there have been a number of reports that after the audit or supervised recruitment, the agency denied the application for the reason that in the job bank job order, employer checked the box of driver license requirement or drug testing requirement, travel requirement, etc. pursuant to the job bank formats when those requirements had not been printed in the advertisements. Another large number of denials have been produced for failure to justify why the unqualified U.S. workers were not offered an on-the-job-training when arguably such on-the-job-training would make such unqualified workers qualified for the job. Another traps included missing of information among the recruitment record in a minor matter or the employer failed to contact the applicants and failed to preserve evidence. Employers are strongly advised to pay attention to the details and good record-keeping to survive in the new permanent labor certification environment and not to experience waste of money and time and denials. http://www.greencardapply.com/news/news12/news12_0509.htm www.greencardfamily.com www.greencardapply.com

The Recent I-485 Application Trends and Tracking

In the past few months, it has been possible for many foreign nationals to advance to the final stage in the permanent residence (green card) process. The U.S. Department of State (DOS) Visa Bulletin has shown employment-based, second preference (EB2) cutoff dates for India and China to be moving forward significantly since November 2011. This development has created much excitement, with numerous applicants seeking insight into case processing trends and timeframes. There is currently a very clear trend toward rapid I-485 case processing. This begins with the issuance of receipt notices almost immediately upon filing, and the fingerprinting notices follow early in the process. EAD and AP approvals typically are received well in advance of the 90 days the U.S. Citizenship and Immigration Services (USCIS) is allowed for processing these benefits. While it would be unwise to make plans that rely on receiving the EAD and/or AP rapidly, at this time, they are often in hand within 60 days of filing, and sometimes even earlier. Finally, the much anticipated I-485 approval notices are arriving daily. While total processing time varies from filing to approval, it often takes less than five months. Individuals should not become overly concerned if they see others who have cases moving a bit more quickly. Cases are neither all processed in a completely uniform manner, nor at the same pace. There are differences from one USCIS service center to another, as well as numerous other factors that contribute to variation in the time each case takes to process. The USCIS is doing a remarkable job, quickly moving through each step in the I-485 case process. This is particularly noteworthy, given the volume of I-485 cases now eligible for filing and adjudication due to the movement of the cutoff dates. This is good news for those who have been able to file in the past few months. http://www.greencardapply.com/news/news12/news12_0507.htm www.greencardfamily.com www.greencardapply.com

Can I Transfer My Priority Date from the Labor Certification Case to NIW?

Question: I have an approved EB3 Labor Certification based Form I-140 application from my employer, with a priority date of last year September. Due to the immigration visa number retrogression in my home country, I can not apply for the status adjustment for U.S. Permanent Resident of I-485 form. Since I have a PhD degree, if I apply for EB2 National Interest Waiver Immigration category now, can I transfer my earlier priority date from the Labor Certification case to the later case filed in EB2 National Interest Waiver Immigration category? -------------------------------------------------------------------------------- Answer: Yes, an individual with an earlier priority date established through an approved I-140 petition in one employment-based category may transfer that earlier priority date for a later case filed in a different employment-based category. This can be a benefit for you when the retention of the earlier priority date is permitted for a later filed EB2 National Interest Waiver case. Please also note that this procedure does not work if the initial I-140 petition has been revoked by your employer, or by USCIS due to fraud, or for use in a labor substitution case. http://www.greencardapply.com/question/question12/question12_0509.htm www.greencardfamily.com www.greencardapply.com

H.R. 3012 Bill in the Senate - What Is the Chance?

As the bill moves close to the final phase of legislation in the Senate, the impact of this bill has been placed under the close microscope in two angles: One is an in-depth analysis of the long-term benefit of the bill and the other is the scope of potential negative impact of the bill on other side of the spectrum. Until now, no one had the complete answers to these two questions and debate on these two issues has just begun in the political arena, which is likely to trigger intense struggle between pro and con of the bill in the Senate.

As the depth of impact of this bill has thus far been under the shadow, there is already a sign and debate from the two end of the spectrum, which will lead to the intense pro and con lobbying activities ahead. Thus far, there has been no set schedule for its companion bill in the Senate.

Traditionally, employment-based piecemeal immigration reform has faced two hawks in the Senate. One is labor union-backer legislators and the other is anti-immigration legislators. The labor unions in this country have welcome guest workers in the farm and related industry because they help the union to expand its political power since such workers are unionized work forces but opposed the high tech professional workers that are not unionized work forces. Senator Dick Durbin, the Senate majority whip, and Senator Chuck Grassley have gained a reputation as the American Worker Protectionists.

They have initiated a numerous legislative bills to restrict H-1B and L-1B programs and oppose piece-meal employment based immigration reform. However, when it comes to legalization of undocumented aliens, Sen. Dick Durbin is at forefront to support Comprehensive Immigration Reform, particularly so-called DREAM Act for undocumented youngster, while Sen. Chuck Grassley opposes legalization of undocumented aliens and Comprehensive Immigration Reform. It will be interesting how Rep. Chaffetz of Utah and Sen. Mike Lee of Utah will be able to negotiate with Sen. Grassley to remove the first road block to the Senate consent to the bill, i.e. scheduling of the bill in the Judiciary Committee.

Ranking member in a committee in the Congress is similar to a "co-chair" of the committee representing the minority (party) members of the committee in the House or the Senate. Since the Republican party is a minority group in the Senate, in the Senate committees, there are Republican Ranking Members and when it comes to a bill which is sponsored by the Republican party Senators, the Democrat Chairs of the Committees must work with the Ranking Members to schedule hearings and mark-ups for the bills which are sponsored by the minority party House Representatives in the House and the minority party Senators in the Senate.


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USCIS Transformation Initiative for Online Filings

The U.S. Citizenship and Immigration Services (USCIS) is undertaking a series of technological updates known as the Transformation Initiative. Transformation is essentially an effort by USCIS to move the application process from a paper-based system to an online, electronic system.

The transformation of the USCIS from primarily a paper-based system to an online system will be an enormous shift in its operations. Over the past few years, our firm has already begun to see positive results of the USCIS' improved use of technology. There are bound to be delays and technical difficulties, as is to be expected with such a massive undertaking. If the transformation process operates according to current plans, it will greatly reduce requests for the submission of duplicate information and documentation.

Transformation is intended to provide better service to those seeking immigration benefits. One of the key components of the transformation is the use of an account-based system. Those seeking immigration benefits will be able to create online accounts. According to the USCIS Web Site, applicants will be able to utilize these accounts for such functions as updating personal information, scheduling appointments, requesting benefits and submitting information, and viewing case status and history.

When the system is fully implemented, individuals seeking immigration benefits, such as the employment authorization document (EAD) or a change of status, will be able to apply online through an individual customer account. In addition, when one initially signs up for a customer account, s/he will input biographical information that will auto-populate all subsequent applications filed, removing the need to reenter personal information multiple times. Once implemented, the system will allow online payment by credit card and will provide receipt numbers immediately.

While the USCIS does not have a deadline for the completion of the transformation process, it has set timeline goals. The first phase, which will establish customer accounts for Form I-539, Application to Change or Extend Status filings, has a goal of being in place by the end of fiscal year 2011 (FY11). The project has been contracted to IBM. According to the USCIS response to the CIS Ombudsman's 2010 report to Congress, substantial steps have been taken toward reaching this goal, with the first customer-facing changes scheduled for implementation in the last quarter of FY11. This phase, according to the USCIS, would include the online individual accounts, electronic filings, online biometric scheduling, and the capability for applicants to upload documentary evidence.

http://www.greencardapply.com/news/news11/news11_1214.htm


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The Immigrant Waiting List By Country

Immigrant visa issuances during fiscal year 2012 are limited by the terms of INA 201 to no more than 226,000 in the family-sponsored preferences and approximately 144,000 in the employment-based preferences. (Visas for "Immediate Relatives" - i.e., spouses, unmarried children under the age of 21 years, and parents - of U.S. citizens are not subject to numerical limitation, however.)

It should by no means be assumed that once an applicant is registered, the case is then continually included in the waiting list totals unless and until a visa is issued. The consular procedures mandate a regular culling of visa cases to remove from the count those unlikely to see further action, so that totals are not unreasonably inflated. If, for example, a consular post receives no response within one year from an applicant to whom the visa application instruction letter (i.e., the consular "Packet 3" letter) is sent when the movement of the visa availability cutoff date indicates a visa may become available within a reasonable time frame, the case is considered "inactive" under the consular procedures and is no longer included in waiting list totals.

The fourteen countries with the highest number of waiting list registrants in FY 2012 are listed below; together these represent 79.5% of the total. This list includes all countries with at least 60,000 persons on the waiting list. The per-country limit in INA 202 sets an annual maximum on the amount of preference visas which may be issued to applicants from any one country; the 2012 per-country limit will be approximately 25,900.

Country Applicants

Mexico 1,374,294
Philippines 503,266
India 343,401
Vietnam 281,439
China-mainland 248,494
Dominican Republic 171,217
Bangladesh 161,769
Pakistan 118,985
Haiti 112,450
Cuba 85,908
El Salvador 83,221
Jamaica 66,016
Korea, South 64,020
Colombia 61,430
All Others 948,489
Worldwide Total 4,624,399

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