Category: I-485


Obama Executive Action Includes Business Immigration Reforms

November 21st, 2014 — 10:22am

While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.

Pre-Registration for Adjustment of Status and Enhanced Worker Portability

This was the big surprise of the night.

Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application.  Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and  will be implemented by a formal regulation.

A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”

If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.

Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”

Foreign Entrepreneurs

Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.

L-1B Specialized Knowledge Workers

DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.

Work Permits for H-4 Visa Holders

A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).

Optional Practical Training (OPT)

The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.

PERM Labor Certification

A full rulemaking will be undertaken to modernize the PERM program.

Visa Modernization.  A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law.  Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.

Important Reminder

None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.

Comment » | Department of Homeland Security, Department of Labor, I-140, I-485

Why Do Visa Numbers Surge Forward and Then Retrogress? Predicting Visa Availability for Backlogged Categories?

August 28th, 2012 — 3:52pm

Predicting when a priority date will become current and when the wait on the long immigrant visa queue will finally be over can often be pure guess work. With visas suddenly unavailable or unexpectedly within reach, preference-visa applicants and their attorneys have learned to accept this phenomenon as just another part of the immigration system. In a recent interview with the head of the Visa Control and Reporting Division at the State Department’s Visa Office – the office charged with establishing the monthly priority dates for the Visa Bulletin – Charles Oppenheim sheds some light on the process and provides his predictions for the months to come.

In October 2012, when new visas are allocated for fiscal year 2013, the employment-based second category (EB-2) worldwide will become current but, Mr. Oppenheim warns, the EB-2 category may retrogress or become unavailable for the rest of the year if USCIS adjudicates a significant number of cases in the summer. EB-2 cut-off dates for China (Mainland born) and India, currently “unavailable,” will only move to August or September 2007 and are not likely to move forward for at least six months due to pent-up demand.  Many of these individuals were just two years away from obtaining their green cards in April 2012 when the priority date was May 1, 2010. Now, these foreign nationals can expect at least a five-year wait. Why did this happen?  Why do priority dates move so far ahead and then retrogress so drastically?

Apparently, USCIS had approved many I-140 employment-based immigrant visa petitions but had not received a corresponding number of I-485 adjustment of status applications to adjudicate and thus urged DOS to move these priority dates forward.  Moreover, USCIS expected that adjudication of EB-1 cases would be at the same rate as last fiscal year, and not more. All of these factors led to the forward movement of the EB-2 priority date. The dates then severely retrogressed when demand caught up with visa availability. Another factor for seesawing EB-2 priority dates was the increase in EB-5 investor immigrant visa cases. Unused EB-5 visas trickle down into the EB-1 category, and unused EB-1 visas fall into EB-2. This year, there was less of the normal trickle-down between categories.

Another issue that clouds prediction of visa demand and visa availability, as explained by Mr. Oppenheim, is that neither USCIS nor DOS maintains statistics on upgrades from the EB-3 category to the EB-2 preference category. This can occur, for example, when an applicant applies for an EB-3 visa petition but then advances in his or her career or changes jobs and becomes eligible for an EB-2 visa or marries an EB-2 applicant. In these instances, the individual then has two visa numbers allocated to him. The unused or duplicate visa number (EB-3) is only cancelled when the visa applicant uses the EB-2 visa number during green card issuance. According to Mr. Oppenheim, there are between 10,000 and 15,000 duplicate visas numbers as a result of “upgrades” each fiscal year – a wide variance.  For 2013, that number is already at 17,000, which underscores the difficulty in predicting upgrades and thus visa availability.

Retrogressions are not good for anyone and neither agency likes them.  For USCIS, it means it has to adjudicate more work authorization and travel documents without a fee, and for DOS, it means lack of predictability. For individuals, it means further uncertainty and futures delayed.

Comment » | Department of State, I-485, Lawful permanent resident

Update on Visa Number Availability

November 2nd, 2011 — 2:15pm

In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:

For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month.

For Employment Categories:  EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.

Comment » | Department of State, I-485, Lawful permanent resident

USCIS Processing Times: Separating Fact from Fiction

February 28th, 2011 — 3:50pm

USCIS processing times may be accessed on the Zulkie Partners website at http://www.zulkiepartners.com/processing.html.

The posted USCIS processing times represent data that is approximately 45 days old at the time of posting. In addition, the listed dates reflect the most-recently filed case in the particular product line on an examiner’s desk at the time the data as gathered. This means that there are many cases with substantially earlier receipt dates than those officially listed that have not been processed as of the date of publication of the processing times schedule. The National Customer Service Center (NCSC) is not using the processing times listed on the USCIS website when it considers whether a case is beyond the official USCIS processing times. The processing times used by NCSC are substantially longer than those on the posted processing time schedule in many cases, particularly in H and L filings, causing NCSC to refuse to submit a case inquiry in some instances.

Sign-up for Case Updates

USCIS Customers (applicants or petitioners) can create an account to more conveniently access information on pending applications and petitions. 
In addition, USCIS Customers can choose to receive automatic case status updates, which will be sent via e-mail. A new pilot program provides the additional option to receive a text message notification that a case status update has occurred, which will be sent to a United States mobile phone number. USCIS Customers who select the option to receive the text message notification acknowledge that Standard Messaging Rates or other charges related to these notifications may apply.

Click here to access this USCIS service.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, I-129, I-140, I-485

PERM Labor Certification Program

December 21st, 2010 — 3:47pm

Most foreign nationals who wish to be eligible for employment-based green cards must do so through the PERM labor certification process by having their employer file a labor certification application with the Department of Labor (DOL). The PERM application certifies that there are no U.S. workers who are willing, able, or available to fill a position offered by an American employer, and the employer must undertake extensive recruitment to prove such. The PERM application also certifies that the employer will pay the sponsored employee the prevailing wage for the job. Once approved or “certified,” the foreign-national employee can petition USCIS for eligibility under one of the employment-based preference categories by filing an I-140 immigrant visa petition.

The largely automated PERM program was introduced in March 2005 and touted by DOL as a new and retooled expedited labor certification process through which employers could begin their sponsorship of valued employees. Nevertheless, the PERM process remains laborious and complicated.

Over the past five years through the issuance of FAQs — DOL’s 11th and latest was issued in August — DOL has retroactively applied new rules to old cases and used the informal FAQ process to create or change its requirements. By forgoing the more formal route of promulgating regulations, which would afford public comment and mandate government consideration, the program remains riddled with deficiencies and uncertainties for employers. Moreover, the application takes about four to six months to prepare, plus another six to ten months for processing by DOL (from online submission to adjudication). And, if DOL requests that the employer’s recruitment and other records be audited, another 15 months will be tacked on for a DOL audit response. Beyond the changing rules and lengthy processing times, perhaps the most disheartening aspect of the process is how unforgiving it is — even the tiniest error on the PERM application can completely derail a case.

So why do employers and their employees bother? Despite these and other hurdles inherent in the PERM labor certification process, this route to permanent residence is often the only viable option for many needed employees. And, the process eventually works: long-time nonimmigrant employees and their families can become green card holders and, later, citizens of the United States. However, employers who anticipate long-term sponsorship of current employees must take particular care to ensure consistency throughout what can be a multi-process, nine- to ten-year immigration odyssey. This can be difficult, especially when the immigration laws are not consistent. For example, a foreign national can be a “professional” for H-1B purposes on the basis of experience and education but not for immigrant visa purposes. Employers also must take care to timely file their PERM applications, especially when their H-1B employees are approaching their final year of their visa status. Indeed, long-term immigration strategies must be considered when hiring H‑1Bs.

Until this system changes, employers and their immigration counsel should actively review pending cases to determine whether additional documentation is required to meet ever-changing DOL requirements. Counsel and employers also are advised to determine from the start the best short- and long-term strategies for their employees.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Labor, I-140, I-485, Lawful permanent resident

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