Visa Bulletin – March 2012

March 2012 Visa Bulletin for the FY 2012 was released few days. March visa bulletin brought 4 months movement for the EB-2 China and EB-2 India categories, thus moving it to the most favorable cut-off dates ever. EB3 categories advanced as expected with EB3-ROW-M-P moving by 3 weeks. EB3-India and China moved as expected by1 week and 4 weeks. All other categories are current. Family Based category saw some movement.

How to use Demand Data to calculate EB3 to EB2 Porting?

As per visa allocation each year under each category, USCIS/DOL should use 233 visas every month for EB2-India. Normally this should reduce demand by 233 every month. Since we are not seeing any reduction in demand data, it suggests that there are many individuals who are upgrading their case from EB3 to EB2. So what is the rate at which EB3 to EB2 porting is happening? Simple Calculations that could be used to estimate this is ...

EB3 to EB2 Porting with same employer: Not a good idea

These days it is been topic of the town for Indian nationals to port their priority date from EB3 to EB2 category. So far this totally makes sense. This could tremendously reduce the wait time for an individual to receive a green card. But an individual and his employer should be very careful while taking this step if they are planning to port the case with a same (current) employer. There are rumors that many employers are upgrading their employees’ petition from EB3 to EB2 category just to retain their employees.

I-485 Case Tracker for PDs 'Current'

We have released new I-485 case tracker for cases that are 'Current' today. Please use this tracker to enter details of your application and case status. Please fill in as much details as possible and edit the tracker as and when you will get more information on your application status. Use this tracker to see if PDs that has recently became current are getting approved

January 2012 I-485 Pending Inventory - EB Category Visa Use

USCIS released I-485 pending inventory upto 12 January 2012. Please note this inventory is only for Service Centers and Field Offices, and does not contain consular processing cases. Dependents are included. Here is a summary of the I-485 inventory when compared to October 2011 Inventory. This inventory is used to estimate the visa use during Q1 of FY 2012 and Projected Demand for FY 2012.Please note that one fallacy to using inventory to estimate demand is that it will not consider cases approved in less than 90 days.

EB Category Roll-Over and PWMB Demand: I-485 Receipt Data

We analyzed I-485 Approvals and Receipts for FY 2011 to estimate carry-over demand from FY 2011 in EB category. We also used this data in conjunction with USCIS I-485 Performance data and I-485 representative filings from June to September 2011 at trackitt to estimate People Who Missed the Boat (PWMB) demand for EB2-IC upto September 2011 that may start consuming visa numbers from FY 2012 annual allocation and/or spillover.

Prediction for EB2 Category for FY 2012

Here is the Prediction for EB2 Category cutoff date retrogression for Fiscal Year 2012. Basis for this prediction is simple calculations (see below) which is done based on available data i.e. PERM data published by DOL, I-485 Inventory data, latest trend on Trackitt for EB1 & EB2 cases and other published data by USCIS. Demand data for each dependent category is predicted and explained in calculations below. This data is further used to calculate spillover that would be available for EB2 category. Retrogression is estimated based on visa allotment available each year for each country and total spillover that is expected in FY 2012. In each case, Optimistic, Realistic and Worst-Case scenario is estimated.

Green Card Calculator - Employment Based

As per recent demand data released until September 01, 2011 on EB I-485 inventory, here is the 'Green Card' calculator for Employment- Based category that tells an individual how many I-485 applicants are there before them in the queue under their filed preference category. Beyond this, calculations are extended to predict how many years will it take an individual to receive a green card. In addition, you can put an assumption for a spillover that your category and country would receive every year and see how this changes the scenario.

What to do once Priority Date (PD) becomes current?

A very commonly asked question by fellow petitioners is the step by step process that they should follow after an individual’s Priority date will become current. Please read this article to check on next steps and required I-485 documents.

I-485 Primary & Secondary Evidence - Country Specific

Commonly asked question is what to do when primary evidence of birth, marriage, divorce etc is not available. Here is the country specific I-485 Required documents for (AOS) or (CP). Immigration officers or Adjudicators are asked to refer to the list below before making any decision on RFE or NOID in case primary evidence is not submitted or established. Please select your country from the drop-down list to see specific secondary evidence and documents.

EB2-India & China I-140 Demand (Yearly) based on DHS Released Report

DHS on 29th December 2011 released a Citizenship and Immigration Services Ombudsman's recommendation to improve the quality in Extraordinary Ability and Other Employment based petition adjudication document. We used this data to deduce I-140 demand for EB2-India and China.

EB2-IC Movements FY 2012 - Mr. Oppenheim's thinking?

We looked into if there is any analytical correlation between movements that Mr. Oppenheim did last year for Family Based Category (F2A) and current movement that we saw with EB2-India and China for Employment Based Category. Is there any correlation or equation or factor that can determine how Mr. Oppenheim would think in absence of demand or visible demand in case number of filings that he is receiving or available adjudicated case cases are less? That is when we started digging into this.

AC21 Portability - FAQs and Sample Letters to USCIS

Some people suggests that sending letter to USCIS on job change after invoking AC-21 portability is not required. But this is a gray area, and no one knows it better if USCIS should be informed when individual would invoke an AC-21 portability to change job once applicant's I-485 is pending for more than 180 days with USCIS.

Understanding Section 245(k) to use it for Derivative applicants after Primary’s I-485 approval

Common question asked by many primary I-485 applicants who had previously filed I-485 Adjustment of Status (AOS) application, which is still pending with USCIS, is about adding their spouses or children (derivatives) to their pending I-485 application. At this point there is always a concern among the petitioner that their case will be approved before their derivatives application

July 2012 Visa Bulletin Predictions - EB Category

Here is the prediction for July 2012 Visa Bulletin. We should see following movements in each category as long as USCIS/DOL would use visa numbers as per statutory allocations.

EB2 India & China - What to expect in FY 2012?

Cut-Off Dates has reached PD 15th April 2007 for EB2-India and China for FY 2011 in September bulletin, now what can we expect for FY 2012?. We have some analysis to estimate movement in FY 2012. This is very rudimentary as of now and can change as FY 2012 will progress.

EB3 ROW-Mexico-Philippines - What to expect in FY 2012?

For FY 2012, EB3-ROW-M-P is expected to move together similar to the movement that was seen for FY 2011. Based on available I-485 inventory, last released demand data, and hidden demand (or Consular Processing demand) that was observed in FY 2011, total EB3-M-P demand until ....

How to know if old I-140 has been revoked by previous employer?

If an individual filing a green card under employment-based category has changed job and now planning to port priority date from previous filed Labor certification, he/she will at least need an approved I-140 from previous employer to recapture priority dates. This I-140 should not be revoked and still active.

Understanding Visa Bulletin Cut-Off Date Determination

The State Department (DOS) is responsible for the allocation of numerically limited immigrant visa numbers under the authority granted by section 203 of the Immigration and Nationality Act (INA). These visa numbers are allocated based on congressionally mandated preferences that assign an overall total, limits for each category and per country limits within each category. Here is a quick Memo on the steps involved.

'Hard' vs 'Soft' LUD - How to use it to track your case status with USCIS?

If you heard people talking about keeping track of 'Soft' and 'Hard' LUDs on forums and other websites, and wondered what it is, now you can understand what is LUDs and how you can use them to track any activity on your petition that is pending with USCIS.

How to Obtain an Emergency Advance Parole (AP) Document?

If your current status is Adjustment of Status (AOS) Pending and you are currently working on EAD, it is very important that you renew your Advance Parole (AP) document in timely manner, well in advance. If an individual leaves a country under AOS pending status with their AP application pending or AP document due expire when they are traveling outside of country, they will abandon their status in United Status. Subsequently their I-485 application will be denied.

People Who Missed the Boat (PWMB) during July 2007

Question was asked in the comment section that how would applications with Priority date before July 2007 who could not file in July 2007 would affect EB2-IC movement for FY 2011. These people are commonly referred as "People Who Missed the Boat (PWMB)" by some people. We earlier thought that these numbers will small percentage of the whole group. But careful analysis of PERM data suggests that these numbers are significant when you will include primary + dependents (assuming a family would consume 2.5 visas) applications.

EB3 to EB2 Porting Calculations - Part III

We have a poll on EB3 to EB2 Porting which is up since last week of February 2011, and till-date we have received '445' votes. Results has been consistent through out the poll for the last two months. It suggests that the general trend or distribution of individuals with different PD that are porting has not changed from day to day regardless of number of votes received.We are convinced that this will be a general trend for rest of the current year regardless of porting numbers. Calculations are further extended to extrapolate real world numbers.

H1B FY 2012 CAP Count & Predictions

As per recent release by USCIS, regular cap has utilized till date 11,200 visas and Masters quota has utilized 7,900 visas as of 13th May 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 35% of the quota. As of now number of petitions increased from last week is 1,600. Based on past months trend, regular cap can reach by 27th January 2012 and Masters Cap by 30 September 2011.

H1B FY 2012 : List of Disqualified Employers

H1B FY 2012 season will be here soon. It is advisable that the prospective aspirants for H1B FY 2012 should be aware of the debarred or disqualified employer for this season. Please make sure you do not become a bait to any of these employers for your H1B filing. These employers are willful violator employer and are black-listed.

PERM Processing Time Starts to Slump

DOL recently released current PERM processing times. It looks like fire-sale is almost over and PERM processing time will again start creeping towards 1-2 months wait or more in coming months. 5 days approval will be a history. Temporary Government shutdown is still not in effect and this will delay the processing time further when some decision about it will be made during April 8, 2011. The Senate votes to fund the federal government through April 8. But the stalemate over 2011 spending remains, and no one wants to pass another short-term stopgap. Is the stage now set for a government shutdown next month is yet to be known.

Document on Tax Exemption for OPT Students and Students on F1B visa

Document or proof stating that OPT students are not required to pay Social Security Taxes and Medicare tax. You can share this with your employer

What is H1B 'CAP Exempt' visa?

Most of the international students after graduation would focus their attention to find a job in corporate world. But it is always difficult to find an employer who will be ready to sponsor your H1B visa. If you are lucky, you may find an employer who is willing to sponsor your work visa, but could not do it because quota is not available at that time or if quota is open, is worried that he may have to wait until start of fiscal year in October before you could begin working for him. What are other options in such case? Well in this case, you can opt for working for organizations that are exempted from H1B visa regular cap quota.

Monday, January 31, 2011

USCIS is Introducing new tool to Adjudicate Certain Employment-Based Petitions

Posted On Monday, January 31, 2011 by CM 1 comments


New Validation Tool Aids Adjudication of Certain Employment-Based Petitions Questions and Answers

“VIBE” Tool Aims to Enhance Accuracy, Efficiency and Fraud Detection

Introduction

The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers. USCIS is beta-testing VIBE, and petitioners may begin seeing VIBE-related Requests For Evidence (RFEs).

Questions & Answers about VIBE

Q1. What is VIBE?
A1. VIBE is a Web-based tool that uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers. One of the goals of VIBE is to equip adjudicators with information from an independent source that they can use to help determine petitioners’ eligibility.

Q2. Which petitions will be included in VIBE?
A2. VIBE will include most employment-based petitions filed by companies and organizations, including the following types of petitions: Petition for a Nonimmigrant Worker (Form I-129); Immigration Petition for an Alien Worker (Form I-140); and Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). See www.uscis.gov/vibe for a complete list of immigrant and nonimmigrant classifications included in VIBE. At this time, VIBE will not include employment-based petitions requesting E11, E21 national interest waiver, EB-5, or O and P classifications due to their unique eligibility requirements.

Q3. What information will VIBE provide to Immigration Services Officers (ISOs)?
A3. VIBE will provide ISOs with information on the petitioning company or organization’s business operations, including information related to:

  • Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
  • Financial standing, including sales volume and credit standing
  • Number of employees, including onsite and globally
  • Relationships with other entities, including foreign affiliates
  • Status, for example whether it is a single entity, branch, subsidiary or headquarters
  • Ownership and legal status, such as LLC, partnership or corporation
  • Company executives
  • Date of establishment as a business entity
  • Current physical address.

Q4. Will a final decision be based solely on information obtained through VIBE?
A4. No. VIBE is an additional tool for ISOs to use in the overall adjudicative process. USCIS will not deny a petition based upon information from VIBE without first giving the petitioner an opportunity to respond to USCIS’s concerns.

USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if there is derogatory or contradictory information found in VIBE that is material to the benefit requested and not outweighed by evidence submitted with the petition. The ISO will make a final decision based on the totality of the circumstances.

Q5. How will a petitioning organization know if it received an RFE or NOID due to a VIBE-related issue?
A5. The RFE or NOID will clearly state that the petitioner has been checked in VIBE and will describe the relevant derogatory or contradictory information found in VIBE. The RFE or NOID will also include information about how a petitioner may contact Dun & Bradstreet (D&B), the company that serves as the independent information provider for VIBE, to correct information.

Q6. If a petitioner receives an RFE or NOID for a VIBE-related issue, is the petitioner required to update its record with D&B?
A6. No. If a petitioner receives an RFE or NOID for a VIBE-related issue, it is not required to update its information with D&B. The petitioner may choose to contact D&B to update the record in order to prevent any subsequently filed petitions from receiving a similar RFE or NOID for the VIBE-related issue in question.

Q7. Must a petitioner respond to USCIS if it updates its record with D&B after receiving an RFE or NOID?
A7. Yes. A petitioner must respond to USCIS with the requested additional information after receiving an RFE or a NOID. Updating the petitioner’s record with D&B is not a substitute for responding to USCIS’s RFE or NOID. Failure to respond to the RFE or NOID directly to USCIS could result in denial of the petition.

Q8. Are there any additional USCIS fees for filing a petition subject to VIBE?
A8. No. There are no additional fees associated with VIBE. Petitioners must still comply with all other fee requirements for the requested classification. Visit http://www.uscis.gov/fees for information about current fees.

Q9. Does VIBE require any additional documentary filing requirements?
A9. No. VIBE does not require the petitioner to file additional documentation. However, it is critical that a petitioner accurately provide its name and address on the USCIS form. This aids USCIS in matching information from the petition with information received through VIBE. Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.

Q10. When filing an I-140 petition for a classification included in VIBE, does a petitioner still need to submit evidence of “ability to pay”?
A10. Yes. The petitioner must continue to submit evidence with an I-140 petition to demonstrate that it has the ability to pay the proffered wage from the time the priority date was established until the beneficiary obtains permanent residence. Although VIBE will assist ISOs by independently validating a petitioner’s business operations, the information provided to USCIS through VIBE is not a substitute for the required evidence of “ability to pay” that is specified in the regulations.

Q11. What effect will VIBE have on processing times for employment-based petitions?
A11. Initially, VIBE will not change USCIS’s overall processing time goals. If there is relevant derogatory or contradictory information identified by VIBE, the petitioning organization may experience prolonged processing due to the time required to complete the RFE, NOID or administrative inquiry. On the other hand, VIBE may allow USCIS to resolve inconsistencies in the record, potentially reducing the need to issue RFEs. USCIS’s goal for VIBE is to gradually reduce processing times for most employment-based petitions.

Questions & Answers about Dun and Bradstreet (D&B)

Q12. How can I view the information in my company or organization’s D&B report?
A12. D&B provides two ways a company or organization may request a copy of its D&B report:

  • By calling D&B’s toll free Customer Support Center at 1-800-234-DUNS (3867)
  • By using D&B's Internet-based service, “e-update,” available at www.dnb.com/eupdateExit Disclaimer.

Q13. Is there a fee for viewing or updating my company or organization’s information or D&B report?
A13. No. There is no fee for a company or organization to view its own D&B report or update its information with D&B.

Q14. I have requested my company or organization’s report from D&B, but I found out that D&B does not yet have any information about my company or organization. What should I do?
A14. If you find that D&B does not yet have any information about your company or organization, you may request a D-U-N-S® Number from D&B. The D-U-N-S® Number is a unique nine-digit identification sequence developed by D&B that provides a unique identifier of single business entities, while linking corporate family structures together. For more information about the D-U-N-S® Number, visit www.dnb.comExit Disclaimer.

A company or organization may contact D&B to request a D-U-N-S Number:

  • By calling D&B’s Customer Support Center at 1-800-234-DUNS (3867)
  • By applying online at www.dnb.comExit Disclaimer. Click the “Get a D&B D-U-N-S® Number” link in the “Customer Resources” section

USCIS does not require petitioners to have a D-U-N-S® Number or include a D-U-N-S® Number when filing with USCIS. USCIS will not automatically issue an RFE or NOID if an employer’s information is not included in the D&B database.

Q15. How long does it take for D&B to update information about a company or organization?
A15. D&B advises that their verification process is generally completed within two to seven business days and that upon completion, the updated information is included in the customer’s record. D&B further advises that requests for new D-U-N-S® Numbers are usually fulfilled within 30 days. Contact D&B for more information.

Please send questions and comments about VIBE to VIBE-Feedback@dhs.gov.

Source - http://www.uscis.gov


Saturday, January 29, 2011

EB3 to EB2 Porting with same (current) employer: Not a good idea

Posted On Saturday, January 29, 2011 by CM 6 comments

These days it is been topic of the town for Indian nationals to port their priority date from EB3 to EB2 category. So far this totally makes sense. This could tremendously reduce the wait time for an individual to receive a green card. If you are porting your case after attaining new job offer from a new employer that would qualify you into EB2 category, well then this should be very straight forward. But an individual and his employer should be very careful while taking this step if they are planning to port the case with a same (current) employer. There are rumors that many employers are upgrading their employees’ petition from EB3 to EB2 category just to retain their employees.

Why EB3 to EB2 Porting with same (current) employer is not a good idea?

To port case from EB3 to EB2 category with same (current) employer it is a common notion among immigration community that your new job description should be different and you should be able to prove that you have attained all your experience before joining current employer. New Job Description should be at least 50% different from previous EB3 job description in order to port case with the same (current) employer. It is also believed that any progressive experience attained with the same (current) employer could be counted towards new EB2 petition. Though this sounds perfect, but an individual opting for this route should consider following points that USCIS would consider before approving your case:

a) Whether new future job opening is legitimate and well documented internally in the company. Employer could be asked to provide evidence or proof supporting this. (example: an email trail from manager requesting addition of head count)

b) If an employee from a company is considered for this new EB2 level job, what would happen to future EB3 level job? Has employer posted an old EB3 level job again in the market? If earlier EB3 level job is not open, did employer falsify his need previously? Is it required for an employer to fill that position?

c) Was your promotion internal and you were considered for this new future job due to experience gained at EB3 qualified job? For example “Software Engineer” to “Project Manager”

d) Whether new job description is biased to gratify individual’s experience and qualifications. This would cause more audits at new PERM or I-140 level.

e) If an American citizen who would qualify for your job at EB3 level today, could he be qualified for your EB2 level job after attaining similar progressive experience. Does this call for testing market for your EB3 job level again in current time when unemployment is so high.

f) How many employees from same employer have recently been upgraded from EB3 to EB2? Does this call for auditing employer for all the recent approved cases.

So in all EB3 to EB2 Porting with same (current) employer could open whole new can of worms, and I would refrain myself from opting this route. If an employer is considering this as an option for number of his employees, he should be cautious as this could call for many audits in future and he could eventually be under scrutiny by USCIS and DOL. It is just a matter of time.


Friday, January 28, 2011

President Obama's Plan to fix Broken Immigration System

Posted On Friday, January 28, 2011 by CM 0 comments

President Obama’s Plan to Win the Future by Fixing Our Broken Immigration System

In his State of the Union Address, President Obama repeated his deep commitment to fixing our broken immigration system. The United States has been enriched by a steady stream of hardworking and talented people from all over the world. These generations of immigrants have helped make America the engine of the global economy and a beacon of hope around the world. As we work to rebuild the economy, our ability to win the future depends, in part, on restoring responsibility and accountability to the immigration system. The American people expect Democrats and Republicans to come together to tackle the major issues confronting our nation, and fixing our broken immigration system is critical to the economy, our global competiveness, and our national security.

  • Secure our borders: This Administration has dedicated record levels of resources to border security, including enforcement personnel and technology. President Obama supports investing strategic resources to further secure our borders.
  • Hold accountable businesses that break the law by exploiting undocumented laborers and undermining American workers: This Administration will build on its current efforts to crack down on employers that deliberately hire and exploit undocumented workers. At the same time, the President believes we must make it easier for the vast majority of employers who want to play by the rules to verify their workers are here legally.
  • Demand responsibility from those living in the United States illegally: Immigrants who are here illegally must take responsibility for their actions. To get on the right side of the law, they must own up to their illegal actions by paying taxes and an additional penalty, and learn English.
  • Create a legal immigration system that meets our diverse needs: We must create a legal immigration system that meets our diverse economic needs and honors our rich tradition as both a nation of entrepreneurial immigrants and a nation of laws.

The President’s Vision for Restoring Accountability & Responsibility to Our Immigration Laws

The President has outlined a vision for fixing the broken immigration system through common sense, comprehensive immigration reform grounded in the principles of responsibility and accountability:

  • Continue to make border security the responsibility and priority of the Federal Government: Today, we are doing more to secure our borders than at any time in the past several decades. However, the Administration continues to refine and strengthen its strategy. Enforcement resources should be targeted, increased where appropriate, and focused on stopping potential terrorists and others who would do our nation harm.
  • Hold accountable businesses that break the law by exploiting undocumented workers: Employers who break the law by deliberately hiring and exploiting undocumented workers undermine the American workforce and must be held accountable. At the same time, we must give employers who want to play by the rules a reliable way to verify that their employees are here legally and eligible to work.
  • Make those living in the United States illegally take responsibility for their actions: Those people living here illegally must also be held accountable for getting on the right side of the law. To do this, they will have to admit they broke the law, pay taxes and a penalty, and learn English before they can get in line to obtain legal status and eventual citizenship. Being a citizen of this country comes not only with rights, but also with fundamental responsibilities. We can create a pathway for legal status that is fair, and reflects reflective of our values.
  • Strengthen economic competiveness by creating a legal immigration system that meets our diverse needs: Our immigration laws should encourage and attract high-skilled individuals from all over the world. We must stop expelling talented and responsible young people, whether they were brought here by their parents as children, or come from other countries to pursue advanced degrees. We must also provide farmers a legal way to hire the workers they rely on, and respect families following the rules.

Building on Progress

The President takes his responsibility to enforce our immigration laws and secure the border seriously Over the last two years, the Obama Administration has dedicated unprecedented resources to secure the border, taken important steps to make interior and worksite enforcement of our immigration laws smarter and more effective, and made improvements to the legal immigration system:

  • Dedicating unprecedented resources to secure the border: Today, there are more “boots on the ground” along the Southwest Border than ever before. The Department of Homeland Security (DHS) has also deployed thousands of technology assets, including aircraft and Unmanned Aircraft Systems, and completed nearly all fencing. Last year, Congress answered the President’s call to bolster the Federal Government’s efforts through the Southwest Border Security Supplemental Bill. DHS is using these resources to build on their successful efforts to decrease the numbers of illegal aliens who cross the border and increase seizures of illegal currency, drugs, and guns that have led to thousands of criminal arrests and prosecutions.
  • Making our interior and worksite enforcement efforts smarter and more strategic: The Administration has laid out new enforcement strategies targeted at removing immigrants convicted of serious crimes and unscrupulous employers who seek to exploit both immigrant and American workers. These new strategies have had real results including a 70 percent increase in deportations of criminal immigrants and, in FY 2010 more audits conducted and fines levied against employers who violated immigration laws than in any year by any previous Administration. DHS has also invested in implementing important reforms to the detention system, enhancing its security and efficiency while prioritizing the health and safety of detainees.
  • Improving our Legal Immigration System: The Administration is improving processing times and clearing backlogs of pending immigration applications, including fully eliminating the FBI National Name Check Program’s backlog. DHS is also working to ensure that naturalization is accessible to all qualified legal immigrants. Since January 2009, DHS has worked with the Armed Forces to naturalize nearly 20,000 military personnel. DHS is also devoting critical funding to promote innovative citizenship preparation and integration programs in communities throughout the country.

Source


Thursday, January 27, 2011

H1B FY 2011 Cap Reached - 26th January 2011

Posted On Thursday, January 27, 2011 by CM 0 comments

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

a) extend the amount of time a current H-1B worker may remain in the U.S.;
b) change the terms of employment for current H-1B workers;
c) allow current H-1B workers to change employers; and
d) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers.

For more information on USCIS and its programs, visit www.uscis.gov.


Wednesday, January 26, 2011

Fact Sheet on RFEs and NOID

Posted On Wednesday, January 26, 2011 by CM 0 comments


USCIS Announces Flexible Response Times for Notices of Intent to Deny and Requests for Evidence

On April 12, 2007, the Department of Homeland Security (DHS) transmitted the final rule Removal of the Standardized Request for Evidence Processing Timeframe to the Federal Register (FR). The rule will take effect on June 16, 2007. This rule amends DHS regulations to give U.S. Citizenship and Immigration Services (USCIS) flexibility in setting the time allowed for immigration benefit applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). This change does not apply to asylum cases, to which a separate set of regulations apply.

The amended rule makes the following key changes and clarifications:

Flexible Response Times to RFEs Permitted

Regardless of the type of evidence requested, the old regulation required USCIS to set an inflexible 12 week period for applicants or petitioners to respond to an RFE. The new regulation permits USCIS to set flexible deadlines. Deadlines will depend on the complexity of cases and types of applications or petitions filed. For example, when requesting readily available or missing initial evidence, USCIS can set a response time much shorter than 12 weeks. On the other hand, USCIS can provide the full 12 week response period for more difficult to obtain evidence.

No Extensions to Submit Responses to RFEs or NOIDs

Regardless of the evidence requested, USCIS has never allowed extensions beyond the maximum 12 week deadline for RFEs and the 30 day deadline for NOIDs. That bar does not change, even though the new rule allows USCIS to set deadlines shorter than those maximums. For example, under the new regulation, USCIS may issue an RFE that gives an applicant 30 days to submit a photo. USCIS will not grant an extension of that 30 day period. Failure to timely respond to the RFE may lead to denial of the application or petition.

When Evidence Submitted With The Application or Petition Does Not Show Eligibility

When initially submitted evidence does not show eligibility, the new regulation allows USCIS to deny the application or petition. As always, USCIS may request that the applicant or petitioner submit additional evidence within a specified time period or may notify the applicant or petitioner that USCIS intends to deny the application or petition. To avoid denial, USCIS urges applicants and petitioners to file complete applications with all of the required initial evidence. The initial evidence for each application and petition type is clearly listed on the form instructions and in the regulations.

Reasons for Issuing a NOID

USCIS may issue a NOID when there is evidence of ineligibility for immigration benefits and is required to issue a NOID when there is negative evidence that the applicant or petitioner does not know about. An applicant or petitioner may respond to the NOID by submitting evidence to disprove the negative information.

If There Is No Response to an RFE or a NOID

The new regulation provides USCIS three options if it does not receive a response to an RFE or a NOID. USCIS may:

• find that the application or petition has been abandoned and, if so, deny it;

• deny the application or petition based on the evidence already received; or

• deny the application or petition for both reasons.

When an Applicant or Petitioner Does Not Appear for a Required Appointment

If an applicant or petitioner fails to appear for biometrics capture, interview or any other required in-person process, USCIS may deny the application or petition as abandoned. However, USCIS may not do so if, prior to the scheduled appointment time, it receives a timely-filed change of address or request to reschedule and decides that the failure to appear is excusable. In such cases, USCIS will reschedule the appointment. USCIS reminds applicants and petitioners that they are required to file an AR-11 change of address form within ten days of their move.


Source


Monday, January 24, 2011

H1B 'Cap Exempt' Visa as an Option?

Posted On Monday, January 24, 2011 by CM 1 comments

Most of the international students after graduation would focus their attention to find a job in corporate world. But it is always difficult to find an employer who will be ready to sponsor your H1B visa. If you are lucky, you may find an employer who is willing to sponsor your work visa, but could not do it because quota is not available at that time or if quota is open, is worried that he may have to wait until start of fiscal year in October before you could begin working for him. What are other options in such case? Well in this case, you can opt for working for organizations that are exempted from H1B visa regular cap quota.

What is H1B ‘Cap Exempt’ Visa?

The "cap exempt" provision of the H1B visa program allows certain US companies and organizations to employ an unlimited number of H1B workers and apply for H1B's at any time of year.

Cap exempt H1B's are available for ALL types of H1B jobs and positions.

This is a great way to find sponsorship jobs and apply for H1B visas all year round. This way you can get your foot in the door and get your first H1B.Once you have an H1B you can then transfer it to a new employer (from cap exempt to cap subjected quota is little tricky). Cap-exempt is not quota limited or restricted the same way as the regular H1B quota. This way you can file for H1B's and start work in the USA at any time of year.

Who can sponsor H1-B ‘Cap Exempt’ visas?

The USCIS states that petitions (applications) for new H1B employment are exempt from the cap if the applicant will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H1B categories regardless of H1B visa number availability.

Petitions filed on behalf of current H1B workers do not count towards the congressionally mandated H1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

  • Extend the amount of time a current H1B worker may remain in the United States
  • Change the terms of employment for current H1B workers;
  • Allow current H1B workers to change from one cap-subject position to a different cap-subject position with a different employer
  • Allow current H1B workers to work concurrently in a second H1B position.

What are advantages of H1B ‘Cap Exempt’ visas?

Unlike the Regular H1B visa , ‘Cap Exempt’ visas

  • No annual numerical limit
  • No set filing dates
  • No set employment start dates

What types of H1B Jobs are available within non-profit Organizations ?

Non profits organizations are varied and in their business nature and markets - Non profits have all types of business departments (IT, finance, marketing, sales etc etc - and All types and levels of jobs are typically available.


H1B FY 2011 Cap Count - Still 1500 visas available

Posted On Monday, January 24, 2011 by CM 0 comments

As per recent release by USCIS, regular cap has utilized till date 62,800 visas. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.

As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap.








Saturday, January 22, 2011

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?

Posted On Saturday, January 22, 2011 by CM 7 comments

While talking to my friends this has been a very common question, if a derivative (dependent) beneficiary can use primary beneficiary’s priority date to file I-485 under employment category.

What is Interfiling?
Interfiling is a procedure that allows an applicant to change the I-140 petition upon which the I-485 is based. Essentially, the I-485 is filed based on an I-140 petition, but the applicant wants to proceed through a new or different I-140 petition. Interfiling permits the individual to "switch" the I-140 upon which the I-485 is based. This is true for the cases where an individual has just ported their case from one preference category to other (e.g. EB3-EB2) and already has I-485 pending with USCIS based on earlier priority.

Can Wife use Husband’s Priority Date or vice-versa to Interfile I-485?
In a scenario where both husband and wife have independent I-140 petitions filed by their respective employers, and where there is a set of I-485s (one for the primary spouse and one for the derivative spouse) filed with regard to one of the I-140s, there is no option of interfiling based upon an I-140 approval for the derivative spouse, even if his/her preference category is better and make them eligible to file I-485 based on primary’s priority date. This is because the roles of derivative spouse and primary applicant would have to be reversed in this situation. There is no mechanism when interfiling to shift applications from derivative to primary and from primary to derivative, therefore making them improperly filed with the other I-140 petition. You cannot mix and match your priority date to take advantage of both worlds.

Of course, if the same person has an EB3 and now an EB2 I-140 petition, the USCIS will allow the EB2 I-140 approval to replace the previously-filed EB3 I-140 petition approval.


Thursday, January 20, 2011

When will I get my Green Card? - Green Card Calculator for EB category

Posted On Thursday, January 20, 2011 by CM 425 comments

If you ever wondered "When will I get my Green Card?", here is the 'Green Card' calculator for Employment- Based category. As per recent data released by USCIS on May 26th, 2011 on EB I-485 inventory this is a calculation that tells an individal how many I-485 applicants are there before them in the queue under their filed preference category. Beyond this, calculations are extended to predict how many years will it take an individual to receive a green card from current date (as per GMT).

Last Edited for October Inventory - December 29, 2011
Data beyond July 2007

Data beyond July 2007 is segregated from PERM data with respective to 'Priority Date'. To segregate EB2 and EB3, PWD minimum salary was used as a basis instead of assumption of 50:50. Ratio 50:50 do not holds true for many countries. Please see table below, which outlines PERM distribution for EB2 and EB3 for different countries.
Spillover Estimation - System will recommend spillover that we expect to receive in coming years for each country and category . EB2-India & China - PERM distribution for different priority date in EB2 - India and China was calculated. This distribution will control how spillover will be distributed among EB2-IC as dates will progress for different Priority Dates. System would try to average the Spillover among EB2-India and China in such a way that number of years required to reach similar PDs are as close as possible. For each fiscal year, system assumes following spillover.

In general distribution of EB2-IC PERM Ratio for different PD year is as shown below. In general, waiting time for Indian nationals in EB2 and EB3 category looks terrible. Since density of applicants per month in EB2-India is so high, that in long run EB2-China will not receive majority of spillover (couple hundred or few thousands). Since EB2 will not be cleared for atleast next 5-6 years, spillover expeccted to EB3 category is minimum. EB3-India will get some indirect- spillover each year due to EB3 to EB2 upgrades or porting which will cause queue to clear faster than anticipated. Individuals with PD close to 2004 -2006 will see ample benefit of this every year. Apparently, if EB2-I will stop receiving spillover or receive minimum spillover in coming years, wait time for EB3-India and EB2-India will end up same. If you will note EB3-India has only 102k estimated demand vs. 165k for EB2-India for PD - March 2011. This whole ordeal is very depressing and visa recapture bill is only hope for EB community.

In addition, you can also put an assumption for a spillover that your category and country would receive every year and see how this changes the scenario. Please see assumptions below. Please ensure that you enter "User ENTERED" value exactly as shown in table below.

I-140 Conversion Rate

 This data is solely taken from published data on website - http://www.immigrationwatch.com/uscis-processing-statistics.html ,and is just tabulated and presented here in different format. We have updated our green calculator to include I-140 conversion rate based on this data, Green Calculator, thus will not assume 100% I-140 approval rate for approved PERMs . This conversion rate is only used for calculation for any cut-off dates which are beyond July 2007.  For any priority date which is after or on October of the particular year, calculator will use the percentage approval rate value from the next year, thus assuming PERM approval time of 90 days.
Tabulated list below also considered volume of applications received at NSC and TSC in order to arrive at average I-140 and I-485 approval percentage, and succesively used those values to calculate 'rolling successive percentage'. Green Card calculator will use 'rolling successive average' to arrive at reduced number of applicants before your priority date to calculate estimated wait time. System will recommend I-140 conversion rate for each priority date.
I-140 conversion rate is also an 'USER ENTERED' entry where you can input values in 'Percentage' only. For e.g. If you will assume percentage as '75', entered value should be '0.75' or '75%'.



Multiple PERM Factor
This is still ongoing effort and we are still looking into estimating reduction in demand due to multiple PERMs owned by an indiviudal and his/her spouse. Based on the poll that we have on our website, double filings within a family looks significant factor to estimate demand beyond July 2007 PD. As per our current poll status there are only 220 real PERMs out of 329 filed PERM that will contrubite to demand. This is around factor of 65%.  

System will recommend 'Multiple PERM factor' based on your country and category. Multiple PERM factor is also an 'USER ENTERED' entry where you can input values in 'Percentage' only.

PWMB - PWMB is taken care of in green card calculator. In general PWMB number for a PD month is added to the current inventory for the successive PD month. For e.g. if PWMB for EB3-ROW with PD Sep -2005 is '50' , this number is added in PD Oct-2005 inventory. This is done because that demand will not be realised until specific PD will become current. Please click this to see post that refers PWMB for EB3 category.

For EB2-India and China, PWMB is added to the following inventory assuming PD in coming visa bulletin will move in increments as stated in table below.EW - (Others) - In addition to other category it will aslo calculate number for applicants for EW (Others) category. Due to complication in calculation it cannot estimate wait time as of now. We will update it going forward.
It is assumed that 7% of the total annual EB Visa Numbers (140,000) are allocated to each of the four retrogressed countries while the remaining 72% visa numbers are available to the Rest of the World. Visa numbers allotment for EB4 and EB5 are considered separately.

F.A.Q. - Why GC calculator is estimating more wait time compared to last one?
a) Our OLD calculator was predicting PERM distribution of 50:50 between EB2 and EB3, which is not true for most of the categories. This ratio has changed when analyzing as per PWD data. General trend is posted above.

b) Earlier annual PERM data was NOT distributed as per Priority Date but was simply divided among each month assuming equal applications number. This is not true. Number of applications for each category is increased for PD 2008 and PD 2009 due to recent approvals of audit cases. Data now is strictly divided as per Priority date (with error of +/- 5 days). For each PERM approval family size is assumed 2.25. There may be many individuals with late PD 2010-PD 2011 who are single but by the time they will get green card, annual family size may increase.

c) Wait time has tremendously increased due to addition of People Who Missed the Boat (PWMB) during July 2007 fiasco. These numbers are significant for each country and category. See our earlier post regarding PWMB. For example numbers considering dependents are for EB3-ROW is 13000, and for EB2-I is 9500. These data are added to respective inventory and number of application prior 2007 has increased.

Factors a), b) and c) are major reason for seeing this whole big difference. But now GC calculator is real representation of wait time for PDs post July 2007.

d) Post PD 2007, when calculating some of the PERM approvals, some of the porting application may be repeated but again as most of us think upgrade demand is small, it should not be large factor.

Total Visa Available Annually - We assume that entire annual limit is available to each category as per statutory limit, but this may not be true as some of the countries do end up getting more than 7% visas than annual limit and other's less. In such case user can input number of visas , a country and a category is receiving as per current trend. Calculator assumes annual limit but this field is User ENTERED.

Consular Processing demand (CP) - System automatically assumes CP demand for different country and category. Users can also assume this demand as '0' or enter specific percentage (%). This field is User ENTERED.

PD becoming 'CURRENT' and "Green Card in Hand" time - System calculates time from today when you can expect to become current. In addition to this you can input current USCIS processing time to estimate "Green Card in hand" time. In general it is recommended that if your I-485 case is pre-adjudicated assume 1 month and if new filing assume 4-8 months. This field is User ENTERED.

Green Card Calculator was also fixed to remove some of the demand that is prior to current priority cut-off dates from the released inventory. One bug in the spillover calculation was also as pointed by one user.

Note : This calculator is estimating wait time assuming DOS will not make dates current for any category (unlikely). These are on average generic wait time, and actual time may vary on case to case basis.

FOR EB2-India and China - Please enter TOTAL Spillover EB2-IC will receive. System recommends Total Spillover based on above spillover assumptions.



Note: To be able to use this feature you must be running "Excel 2003 or later and Internet Explorer" or "Excel 2010 and Firefox". Works better with Internet Explorer.




Wednesday, January 19, 2011

Planning on H1B Stamping in India - Please read this on 221(g)

Posted On Wednesday, January 19, 2011 by CM 0 comments


For all the H1B holder planning to stamp their H1B visa in coming months should read this important information on murthy.com.

H1B and H-4 Visa Applications in India Plagued by 221(g) Refusals: Part 1
Posted 14.Jan.2011

Historically, the U.S. consulates in India have had a reputation for closely scrutinizing visa applications. The standards at the consulates for H1B visas were quite strict, even prior to the U.S. Citizenship and Immigration Services' (USCIS's) implementation of stricter adjudications policies. Recently, however, the consular rates of reported issuance of 221(g) visa refusals and denials have reached a critical level. At the present time,
it would be wise for H1B workers employed by IT consulting companies, as well as their H-4 spouses, that they limit international travel unless it is absolutely necessary. Those working for employers in other sectors also face risks that should be carefully considered before traveling internationally and applying for visa stamps abroad.

221(g) Ineligibility

The Immigration and Nationality Act (INA) Section 221(g) is a fairly generic provision, which states that consular officers cannot issue visas to applicants who are ineligible to receive the visas under any section of law, or if the visa applications do not comply with immigration laws and regulations. Put simply, 221(g) is a catchall provision for refusing a visa if, in the opinion of the consular officer, the applicant has not proven eligibility for visa issuance. The 221(g) is classified as a visa "refusal" and must be revealed as such in any later visa applications. This was addressed in our news article, 221(g) Visa Stamp is Considered a Visa Refusal (18.Dec.2009), available on MurthyDotCom.

For many applicants, the 221(g) notification (issued on various colors of paper) is not the end of the road. It is not uncommon for 221(g) visa refusals to be used by the consulates as a way of issuing requests for evidence (RFEs). They contain preprinted lists of documents, and consular officers check off the boxes corresponding to the additional documents needed to make their final decisions.

Some 221(g) notices are for administrative processing. These do not require additional documents from the applicant. They involve internal background checks on the applicant and/or the petitioning employer, if applicable.

Cases Receiving 221(g)s

The 221(g) can be issued in any type of visa application. We are receiving daily inquiries and requests for assistance from individuals and their employers after problems arise in their visa applications. The cases coming into the Murthy Law Firm and Murthy Immigration Services, Pvt. Ltd. (MISPL) in Chennai, India, most commonly involve IT consulting company employees applying for H1B visas. However, we are also receiving inquiries from individuals in other lines of work who have received the same treatment. While these types of cases represent a smaller proportion of those experiencing problems, it has become a common occurrence.

Why Visa Applicants Receive 221(g) Refusals

The 221(g) provisions have been used for many years to request additional documentation, or to put the application on "hold," pending additional background and security checks. What is occurring at the present time, however, is the seemingly universal use of a laundry list 221(g) in many H1B cases, without regard to the content of the H1B petition itself or documents and information offered at the interview.

Read More on Murthy.com


How to know if old I-140 has been revoked by previous employer?

Posted On Wednesday, January 19, 2011 by CM 6 comments

If an individual filing a green card under employment-based category has changed job and now planning to port priority date from previous filed Labor certification, he will at least need an approved I-140 from previous employer to recapture priority dates.

As per Yates Memo, in the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent I-140 immigrant visa petition in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. So, unless case is revoked due to fraud, you should be able to recapture old priority date.

But there are many cases with USCIS, where old priority date is not recaptured on new filings even if previous employer revokes old approved I-140 due to retaliation or due to company's policy to annually revoke cases for former employees. In these circumstances, employee or new employer should call National Service Center and talk to representative and remind them about Yates Memo, which clearly says earliest priority date should be recaptured unless petition was revoked due to fraud or misrepresentation. If you will talk to them nicely and puftorth your case by referencing Yates Memo, you might be able to convince them to recapture old PD. See excerpt from Yates Memo below.


From: William R. Yates

Date: 09/23/05

Re: Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate Labor Certification Requests and Requests for Extension of H-1B Status Beyond the 6th Year.

Revisions to Adjudicator’s Field Manual (AFM) Chapters 22.2(b)(2), 22.2(b)(3)(B), 22.2(b)(3)(F), (22.2(b)(5) and 33.3(g)(8) (AFM Update AD 05-15)
.....
In those cases where the alien’s priority date is established by the filing of the labor certification, once the alien’s Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. This includes cases where a change of employer has occurred; however, the new employer must obtain a new labor certification if the classification requested requires a labor certification

How to know if old I-140 has been revoked by previous employer?

There is no easy way to know if previous employer has revoked your old approved I-140. The best way to know this is to call your previous employer or attorney and see if your previously approved I-140 is still good. If that is not an option, other way to predict this is to check if there is any 'Soft LUD' on your previously approved I-140. If there is no update on your case status after final action (i.e. approval notice sent date), then you may be in good shape and your I-140 is still good. Please see '. Other than this there is no better way to know status on previously filed petition.



H1B FY 2011 Cap Count - 14 January 2011

Posted On Wednesday, January 19, 2011 by CM 0 comments

As per recent release by USCIS, regular cap has utilized till date 60,700 visas. As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers. Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.





Friday, January 14, 2011

Can one leave sponsoring employer soon after getting Green Card?

Posted On Friday, January 14, 2011 by CM 3 comments

A green card job offer is legally considered a future full-time and permanent job offer. Therefore, the employee must have a good-faith intention to work for the employer after the green card is approved, and the employer must have a good-faith intention to employ the employee after the green card is approved. Even if one worked for the sponsoring employer for several years while pursuing the green card process, that would not count as future intent. Generally, 6 months to 1 year after obtaining the green card is a safe time period to change employment. Failure to stay at the sponsoring employer may result in problems at the naturalization stage.

The official rule is that you must not have any preconceived intention to leave the job when you get your Green Card. In general, working for the company for one year after getting the GC is normally considered sufficient. If individual want to leave job after filing I-485, he/she should work for sponsoring employee for at least 180 days before they can file for AC21 portability.

To be on safer side, I would not change jobs before a year. It is just matter of time when your miscalculated decision can come back and bite you. As they say "Fools Rush In".


Thursday, January 13, 2011

Priority Date - How to recapture from previously filed petition ?

Posted On Thursday, January 13, 2011 by CM 0 comments

Generally speaking, the filing date of the visa petition determines the priority date of the alien beneficiary, and his or her place on the waiting list for an immigrant visa.

Employment Based

Immigrant workers being sponsored for labor certifications or PERM are an exception to above rule; the labor certification filing date with the Department of Labor controls as the priority date.

In the context of employment-based immigration, visa petitions filed under the EB-1, EB-2, or EB-3 categories are entitled to the earliest priority date where a subsequent immigrant visa petition (usually I-140) in any of these categories is submitted and approved, unless the prior petition was revoked due to fraud. However, these priority dates are not transferable to the EB-4 or EB-5 categories, or family-sponsored visa petitions.

Once immigrant petition for alien has been approved, he or she can move to new employment. In order to recapture previous priority date, alien has to start their green card process again with his employer. This involves submission of new PERM for new job to DOL. Once PERM is approved, request to capture previous priority date can be sent to USCIS when filing for new I-140 or during filing I-485. Please note, you will need an approved I-140 to recapture priority date. Old PERM approval is not sufficient. Proof of previously approved I-140 could be send to USCIS in form of copy of approval notice, copy of receipt notice or image capture of approval of case on USCIS website.


Family Based

Recapturing an earlier priority date for a subsequent family-based visa petition is more complicated. Here’s a brief overview of the U.S. family-based immigration system: immediate relative (spouse or unmarried child under 21 years old of U.S. citizen); 1st preference (unmarried child over 21 years old of U.S. citizen); 2nd preference (F2A – spouse and unmarried child under 21 years old of permanent resident, and F2B – unmarried child over 21 years old of permanent resident); 3rd preference (married child of U.S. citizen); and 4th preference (brother or sister of U.S. citizen). It is important to note that there is no category for married children of permanent residents.

Regulations implementing U.S. immigration law provide specifically when priority dates can be recaptured for a family petition. Generally speaking, a beneficiary can recapture an earlier priority date if the petitioner and the beneficiary are the same, the petitioner is filing in the same preference category, and the prior I-130 visa petition was not terminated or revoked. For example, if an unmarried child of a U.S. citizen over the age of 21 years old (1st preference category) marries while the petition is pending, then the beneficiary is automatically converted to the 3rd preference category but they will keep the original priority date. However, if an unmarried child of a permanent resident (2nd preference) marries while the petition is pending, then the petition is automatically revoked as a matter of law because no category exists for permanent residents to petition married children. Any subsequent petition that the permanent resident parent files on that child’s behalf (such as a 3rd preference visa when the parent becomes a U.S. citizen) will entail a new filing (priority) date.

Another complicated situation where priority dates can be recaptured involves the children of unmarried sons or daughters who are the principal beneficiaries of their parents’ petitions filed in the 2nd preference category. If these children (derivative beneficiaries) turn 21 years old, they lose their derivative status and move from the F2A category to F2B. Moreover, the children will require a new immigrant visa petition filed on their behalf. Fortunately, these derivative beneficiaries who “aged-out” will be able to retain the original priority date of their initial petition.

Priority dates directly determine when an individual can immigrate to the United States or adjust their status to permanent residency. As you can see, attempting to recapture an earlier priority date to ensure more timely immigration can be complex. Individuals seeking assistance with recapturing a priority date from a prior petition should consult with knowledgeable and experienced immigration attorneys.


Visa Bulletin - February 2011

Posted On Thursday, January 13, 2011 by CM 0 comments

February 2011 Visa Bulletin was released on 12th January 2011. As predicted there was no major movement for employment based category. EB-2 China progressed by 8 days into July 2006. EB-2 India is still standstill. Major movement for the EB-2 employment based category for India and China will be seen in month of June-July 2011, only when unused visa numbers will be available due to spillover from EB2- ROW and EB-1 . Until then one should expect small or no movement in EB-2 category. Eb-3 movement was observed for India and China. This will still progress at snail pace for rest of the year. Family Based category will see retrogression for rest of the year.

Family Based :

As per February Visa Bulletin, family categories had seen as much of the advancement of the last two years has been reversed with major retrogression.

RETROGRESSION OF FAMILY CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family Fourth preference category has required the retrogression of the Worldwide, China-mainland born, Dominican Republic, and India cut-off date for the month of February.

It has also been necessary to retrogress the Dominican Republic F2B category for the month of February.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries.

Please Note: Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month, compared with the amount of available numbers. For example, during the past month, over 17,300 of the applicants who have become documentarily qualified in the Family preference categories have priority dates earlier than the cut-off dates established for January. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.



Employment Based :

Employment 1st - still current in all categories.

Employment 2nd - weak movement for India and China; just a one week improvement for China (01 Jul 2006) and stalled again for India (8 May 2006).

Employment 3rd - modest movement; 8 days advance for most countries to 01 April 2005; two week advance for China to 01 Jan 2004; India moves up two week to 22 February 2002. Mexico jumps 2 months to 08 July 2003 and the Philippines jumps by 8 days to 01 April 2005.

Employment 3rd Other Workers – most countries moved by one week at 01 May 2003; India moves up 22 February 2002; Mexico jumps to 01 May 2003.

Employment 4th - still current in all categories.

Employment 5th - still current in all categories.




Monday, January 10, 2011

H1B FY 2011 Cap Count - 7th Jan 2011

Posted On Monday, January 10, 2011 by CM 0 comments

As per recent release by USCIS, regular cap has utilized till date 58,700 visas. As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers. Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.


Friday, January 7, 2011

How to contact USCIS National Customer Service Center ?

Posted On Friday, January 07, 2011 by CM 0 comments

Yesterday USCIS released guide on the services provided by USCIS. This is a quick cheat sheet for anyone who is trying to get in contact with USCIS Customer Representative regarding recently filed cases, queries or any discrepancy in their receipt or approval notice. This Customer Service Reference Guide provides information on the services provided by USCIS. This guide is a duplicate of the information used by the representatives at the National Customer Service Center to answer calls on our toll free numbers.

For information about a particular immigration benefit or service, please select the appropriate topic on the menu below. USCIS encourages petitioners to go through this information before calling National Service Center. This is the comprehensive information that is available online. Individual should bookmark this page for future reference.




Source : USCIS Customer Service Guide


'Hard' vs 'Soft' LUD - How to use it to track your case status with USCIS?

Posted On Friday, January 07, 2011 by CM 6 comments

If you heard people talking about keeping track of 'Soft' and 'Hard' LUDs on forums and other websites, and wondered what it is, now you can understand what is LUDs and how you can use them to track any activity on your petition that is pending with USCIS. LUD is an abbreviation for 'Last Updated Date'. In order to track any activity on your pending petition, you will first need to register an account with USCIS to check your case status online.

Here is a link to register for USCIS case tracking system. Once you are registered to the system, you will need to add each case you want to track based on receipt number on notice that you had recently received from USCIS. You will see your case as shown below. You can track LUD (Last Updated Date) on your case in column shown with red box below.


You can go into each case to check your status. USCIS allows an individual to setup an email or mobile alert to track case status update.


Hard LUDs
"Hard" LUD (Last Updated Date) is one where you see status update to your case. Example from "Initial Review" to "Decision". Here you know why case was updated; you can see the update status online. You can even get an email or mobile alert, if you had opted for this option. However, the status will only change if the USCIS updates your case from one to other (receipt notice, approval notice, request for evidence (RFE), notice of intent to deny (NOID), card production, or other documents) or on receipt of response to RFE, NOID or request to premium process the case.

Soft LUDs
"Soft LUD" is one where you will not see any change in status or get an email alert from USCIS. These are the internal activities that occur at USCIS. For example your I-485 case has been processed and ready to be approved, but USCIS could not approve it because your priority date is not current. Others like your fingerprints get added in the system, your background check results are received, your case was moved internally from one cabinet to other or moved from one service center to other etc. You can track this by logging into USCIS Case Status system and checking "Last Updated" column in your portfolio. If you know that you expect any update in your case due to FP or background check or your I-485 is about to process, you can track this based on "Soft LUD". But again, this is all based on guesstimate and no one other than USCIS knows what is the real reason behind the update. My personal opinion is that I would not lose my sleep over tracking Soft LUDs. You will never get anything useful from it.


Bill in House to Eliminate DV Lottery Program and Reallocate Visa Numbers to Employment Based Green Card

Posted On Friday, January 07, 2011 by CM 4 comments

Recently Senator Issa (R-CA) introduced a bill in house to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States in field of science or medicine. According to proposed bill visas shall be made available, in a number not to exceed 55,000, to qualified immigrants who--
  • are a member of a profession holding an advanced degree obtained within the United States;
  • ·obtained such degree within the United States during the 5-year period preceding the date on which the petition filed under section 204(a)(1)(F) for classification under this subparagraph is filed; or has resided continuously in the United States in a lawful nonimmigrant status since obtaining such degree; and
  • whose services in the sciences or medicine

Why Introducing this Bill a good idea?

The diversity visa program applicant need not be skilled, professional, have an advanced degree or in an occupation that US is in dearth of. They are just picked randomly. When they come to US they may not be able to contribute to the economy immediately. It should be noted that to qualify for a Diversity Visa, you only need a high school education or its equivalent or to qualify on the basis of your work experience, individual must, within the past five years, have two years of experience in an occupation that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher. Additionally it is also limited to certain countries that are poorly represented yet in the US. People from countries such as Philippines, Mexico and other nationalities are automatically not included in the list as a result. This program was good when it was first enacted to encourage more diversity but since then US has been a melting pot of vastly diversified population, so this may not be necessary any more. There is no doubt that America needs talented and skilled workers in science and medicine for continuous economic growth to keep their competitive edge over other countries. It doesn't make sense for an individual who has studied in an US University and currently employed by an US employer to go back home and compete with US companies rather than staying here and contributing towards innovation in their field.

Will this bill pass in House?

Number of Bills to stop the Diversity Visa category has been introduced in Congress regularly almost since the DV program started with the last Comprehensive Immigration Reform in 1989. None of these bills have ever made it very far in House. So in my opinion, readers should not be disappointed if this bill is killed in the House once again.

You can read complete text of the H.R.43.IH Bill here.