Immigrant Visas

State Department may change the way it determines immigrant visa availability

News Release from Jewell & Associates, PC According to a news item posted online on September 3, 2015 by the National Law Review, there may soon be a change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas.  Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin may begin providing two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed, and one governing when a pending I-485 may be approved.

The net effect would be to make the benefits of a pending I-485 application available sooner to prospective immigrants than under the current system.  We note that no official confirmation of this potential change has yet been provided.  We will report on further details as they become available.

© Jewell & Associates, PC 2015

USCIS posts summary of upcoming executive actions on immigration

News Release from Jewell & Associates, PC On December 5, 2014, USCIS posted on its website a summary of the executive actions on immigration announced by President Obama on November 20, 2014.  With respect to each of the major planned initiatives, the USCIS summary sets forth, to the extent currently known:

  • Who is eligible
  • What the initiative will do
  • When an applicant can begin to make a request
  • How to make a request

Importantly, the summary cautions: “These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam.  Subscribe to this page to get updates when new information is posted.”  USCIS’s full posting, along with the link to subscribe to updates, is here.

By Phyllis Jewell. © Jewell & Associates, PC 2014

President Obama intends to reform the immigration system through executive action

News Release from Jewell & Associates, PC

Yesterday the President announced his intent to reform the immigration system through executive action in ten key areas. Planned action that will be of particular interest to the business community include:

Support to High-Skilled Workers and Business

The Department of Homeland Security (DHS) will take action to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and expand opportunities for students to gain on-the-job training. The full memo can be found here. Planned actions include:

  1. Modernizing the employment-based immigrant visa system, including working with the State Department to ensure that available immigrant visas are issued, and to improve the system for determining when visas are available; and considering the amendment of regulations to ensure that long-standing visa petitions remain valid in certain cases where a beneficiary changes jobs or employers.
  2. Reforming Optional Practical Training for foreign students and graduates from U.S. universities.
  3. Promoting research and development, including increased use of the National Interest Waiver, and a potential program permitting DHS to grant parole status to inventors, researchers, and start-up founders who do not yet qualify for NIW.
  4. Bringing greater consistency to the L-1B visa program.
  5. Increasing worker portability.

Modernization of the PERM Program

The Department of Labor (DOL) has not examined or modified the permanent labor certification program since its inception in 2005. In response to ongoing feedback, including that the regulatory requirements governing PERM recruitment do not align with worker or industry practices, DOL will undertake a review of the program and regulations. The full memo can be found here. DOL will seek input on:

  1. How to identify labor force occupational shortages and surpluses, and how to align domestic worker recruitment requirements with those.
  2. Modernizing U.S. worker recruitment requirements.
  3. Clarifying employer obligations to ensure PERM positions are open to U.S. workers.
  4. Ranges of case processing timeframes and possibilities for premium processing.
  5. Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

Other planned executive actions include strengthening border security; replacing Secure Communities; expanding Deferred Action for Childhood Arrivals; and extending deferred action to parents of U.S. citizens and Lawful Permanent Residents.

Note that the immigration agencies are NOT accepting applications under these newly announced programs and initiatives at this time. For resources on how to protect yourself from immigration scams and fraud visit stopnotariofraud.org.

Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.

By Christopher Beckerson and Claire Pratt. © Jewell & Associates, PC 2014

DHS to propose allowing work authorization for spouses of certain H-1B workers, and more

News Release from Jewell & Associates, PC

The Department of Homeland Security has announced that it will publish a proposed rule that would:

  1. Allow work authorization for H-4 spouses of certain H-1B workers in the permanent residence (green card) process based on employment. For the H-4 spouse to qualify for work authorization, the H-1B worker would have to (a) be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or (b) have been granted an extension of H-1B status beyond the usual six-year limit, under the provisions of AC21 (the American Competitiveness in the Twenty-first Century Act of 2000, as amended).
  2. Clarify that Australian E-3 workers and Singaporean and Chilean H-1B1 workers do not need EAD cards to work for the sponsoring employer; also, allow Australian E-3s,  Singaporean and Chilean H-1B1s, and Northern Marianas CW-1s to continue working for up to 240 days during the pendency of an E-3, H-1B 1, or CW-1 extension application filed with USCIS. The rule would add E-3 and H-1B1 nonimmigrant workers to the list of classes of aliens authorized for employment “incident to status” with a specific employer, meaning that the E-3 or H-1B status itself carries work authorization, without the necessity of a separate Employment Authorization Document (EAD card).  The rule would also bring E-3, H-1B1, and CW-1 nonimmigrant workers into line with H-1Bs and other work classifications in allowing up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.
  3. Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to include “other comparable evidence.” This would add “other comparable evidence” to the list of types of evidence supporting an EB-1 immigrant petition for an “outstanding professor or researcher,” i.e., an EB-1B petition.  EB-1A petitions, for persons of “extraordinary ability,” already permit the use of “other comparable evidence.”

Further information can be found in the White House press release.

By Phyllis Jewell and Christopher Beckerson. © Jewell & Associates, PC 2014

DOL online labor certification registry now live

News Release from Jewell & Associates, PC

In January the Department of Labor (DOL) announced that it would make copies of various documents submitted to it by employers available to the public in a searchable Labor Certification Registry (LCR). These include documents submitted in PERM labor certification, H-1B, H-1B1, H-2A, H-2B, and E-3 cases.

On July 1, 2013, the LCR went live, providing public access to redacted copies of documents related to these cases. For PERM labor certifications DOL will redact the employer’s and employee’s names, but not the position’s job description, minimum requirements, salary, prevailing wage, or worksite address. DOL will also not redact company contact information, such as the name of the individual listed as the company contact on the labor certification and his or her e-mail address, or information about the employer and employee’s attorney.

You can access the LCR here, and read DOL’s Federal Register notice here.

By Christopher Beckerson. © Jewell & Associates, PC 2013

Priority date predictions from Department of State

News Release from Jewell & Associates, PC – July 2, 2012 The Department of State’s Charlie Oppenheim has spoken to AILA about cut-off date predictions for October 2012 – the start of the 2013 fiscal year. Highlights include:

  • EB-2 worldwide will be current.
  • EB-2 China and India, which are currently “unavailable,” will return to around August 2007. It is unlikely that they will advance at all until April 2013.
  • State has pre-adjudicated 17,000 EB-2 cases for natives of China, India, and worldwide with priority dates after January 1, 2009. There will therefore be many cases queued up for adjudication in October 2012 and it will take some time to get through them.

From AILA InfoNet Doc. No. 12012349 (posted Jun. 28, 2012).

© Jewell & Associates, PC 2012

Cut-off dates for EB-2 India and China will retrogress to August 15, 2007

News Release from Jewell & Associates, PC – March 23, 2012 UPDATE: The Department of State has informed AILA that when the May Visa Bulletin is published, the China and India EB-2 cut-off dates will retrogress to August 15, 2007 and remain there for the remainder of fiscal year 2012. It was “too early” to predict movement for the remainder of the calendar year.

From AILA InfoNet Doc. No. 12032365 (posted Mar. 23, 2012).

© Jewell & Associates, PC 2012

Priority Date projections for EB-2 India and China

News Release from Jewell & Associates, PC – March 19, 2012 The recent rapid progress of the cut-off dates for Indian and Chinese nationals in the EB-2 preference category will end soon, according to the Department of State’s Chief of Visa Control and Reporting, Charlie Oppenheim:

On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim… informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

From AILA InfoNet Doc. No. 12031639 (posted Mar. 16, 2012) (emphasis added).

© Jewell & Associates, PC 2012

Green Card Lottery entrants can check status online through June 30, 2012

News Release from Jewell & Associates, PC – July 21, 2011 Now through June, 30, 2012, entrants in the DV-2012 Diversity Visa Lottery may check the status of their entries through the Department State’s Entry Status Check on the State Department’s Electronic Diversity Visa website. To find out if his/her entry was selected (i.e., if he/she “won” the green card lottery), an entrant must use the information on his/her DV-2012 confirmation page. Entry Status Check is the only means by which the Department of State will notify DV-2012 entrants of their selection.  Entry Status Check will give DV-2012 lottery winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.

For general information about the annual Diversity Visa Lottery, please visit the Department of State’s website.

© Jewell & Associates, PC 2011

Priority Date Progress—Predictions from the Department of State

News Release from Jewell & Associates, PC – October 4, 2010 Charles Oppenheim, chief of the Visa Control and Reporting Division of the Department of State, provided an overview of the likely progress of family and employment-based visa classifications at a recent meeting with AILA’s Washington, D.C. chapter.

Family-Based Classifications: Visas Currently Underutilized

Mr. Oppenheim expects priority dates in the family-based categories to continue advancing quickly. He attributed underutilization in these categories to the present economic climate, which may be discouraging foreign nationals from relocating to the United States and rendering petitioners unable to pay fees or comply with income requirements. Further, unlawfully present beneficiaries may be unwilling to travel abroad for consular processing due to bars on re-entry.

Employment-Based Classifications: Visas in EB-2 and EB-3 Oversubscribed

Mr. Oppenheim suggested that oversubscription in the EB-2 and EB-3 categories might be due to beneficiaries starting families between their petitions being filed and their priority date becoming current. Further, demand for the China and India EB-2 categories has increased as EB-3 beneficiaries have “ported” their priority dates over. This has not relieved pressure on the EB-3 category for these nationals, who can expect their priority dates to advance at the same pace in 2011 as they did in 2010. Mr. Oppenheim made the following predictions for priority date movement over the next few monthly Visa Bulletins:

  • EB2 China: Slow—one or two weeks per bulletin.
  • EB-2 India: Unchanged or very slow—a week or so per bulletin.
  • EB‐3 China and India: Slow—one or two weeks per bulletin.
  • EB‐3 Rest of World: Unchanged or slow in November.

Employment-Based Classifications: EB-1

Mr. Oppenheim finished on a positive note for China and India: under AC-21, unused EB-1 numbers from other countries have crossed over to their EB-1 categories, allowing 5,000-6000 visa numbers to be allocated rather than the normal limit of around 2,800. He also pointed out that remaining unused EB-1 numbers “fall down” into the EB-2 categories, which has added approximately 20,000 EB-2 numbers for India and nearly 6,500 for China.

 © Jewell & Associates, PC 2010