USCIS to Issue Employment Authorization and Advance Parole Card on a Single Card

Introduction

U.S. Citizenship and Immigration Services (USCIS) today announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485.

Questions and Answers

Q1. How is this card different from the current Employment Authorization Document (EAD)?
A1. The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, "Serves as I-512 Advance Parole". A card with this text will serve as both an employment authorization and Advance Parole document.

Employers may accept this card as a List A document when completing the Employment Eligibility Verification, Form I-9.

Q2. Why did USCIS combine these benefits in one card?
A2. With the new card, adjustment of status applicants no longer will have to carry both an EAD and a separate paper Advance Parole document while awaiting adjudication of their Form I-485 applications. Instead, applicants only will have to carry this one credit card-sized card. The new card is more secure and more durable than the current paper Advance Parole document.

Q3. How do I receive the EAD and Advance Parole card?
A3. You may receive this card when you file an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing an Application to Register Permanent Residence or Adjust Status, Form I-485. You must file the Forms I-765 and I-131 at the same time in order to receive an EAD and Advance Parole card. Please ensure that you enter your name and address identically on Forms I-765 and I-131 that you file concurrently in order to receive the new card.

Q4. If I receive this card, does that guarantee my re-entry into the United States if I travel?
A4. No. This card authorizes parole, not admission, to the U.S. Parole is not an admission or "entry". If you obtain this card, you may use it to travel abroad and return to the U.S. Upon arriving at a port-of-entry, you should present the card to a Customs and Border Protection (CBP) Officer to request parole. Issuance of an Advance Parole document does not guarantee that CBP will parole you into the U.S. If parole is granted, you will be permitted to come into the U.S. as a parolee, but will not have been 'admitted". Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.

Q5. How much does this card cost?
A5. If you submitted an application for adjustment of status on or after July 30, 2007 (or on or after August 18, 2007, for employment-based cases), you will pay only one fee to file Form I-485, Form I-765 and Form I-131. The fee for Form I-485 is $1,070, ($985 plus $85 biometric fee), and there is no separate fee for Forms I-765 and I-131 associated with a Form I-485. For those cases that were filed under the old fee structure, the costs for this card will equal the combined costs of filing Forms I-131 and I-765, which is a total of $740. Visit www.uscis.gov/fees for more information.

Q6. How long is this card valid?
A6. Based on the availability of an immigrant visa, USCIS will issue this card for a period of one or two years. USCIS may also in its discretion issue the card for a longer or shorter validity period, depending on the particulars of the case.

Q7. What if I already have an EAD or an Advance Parole document?
A7. If your Advance Parole document and EAD card have different expiration dates, you may only receive this card if both documents have less than 120 days of validity left, or if the EAD has less than 120 days of validity left and the Advance Parole document is for a single entry only. If you decide to file for this card by filing Forms I-765 and I-131 simultaneously, do not apply more than 120 days before your current EAD expires. The validity period for the EAD and Advance Parole card will begin on the date of the adjudication of the Forms I-765 and I-131.

Q8. Will USCIS still issue separate EAD and Advance Parole documents?
A8. Yes. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. For example, you will receive an EAD without permission to travel if you do not request Advance Parole or if your Form I-765 is approved but your Form I-131 is denied.

Q9. If I lose or damage this card, how do I get another one?
A9. To obtain a replacement card, you must file the Application for Employment Authorization, Form I-765, and Application for Travel Document, Form I-131, concurrently, with the appropriate fee of $380 for the I-765 and $360 for the I-131. Although individuals who file under the current fee structure obtain their first card at no cost, they are required to pay the current application fee(s) for any card that USCIS replaces due to loss, negligence or damage. Visit www.uscis.gov/fees for more information.

Q10. Is this card available to anyone?
A10. No. This card is only available to certain individuals who have pending family or employment based Forms I-485.

Q11. What does this card look like?

A11.

To learn more about USCIS and its programs, visit www.uscis.gov or call the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY).

Source

Visa Bulletin - March 2011

March 2011 Visa Bulletin was released on 11 February, 2011. No movement for Family-Based categories. We expect retrogression for Family-Based F-2A category in coming months. For Employment-Based category, EB-3 overall saw some movement in cut-off dates for each country. EB2 is current for all other countries except India and China. EB2-India did not see any movement. EB2-China progressed by one week. EB1, EB4 and EB5 are still current.

Family-Based

Family 1st – no improvement for most countries; one week advance for Mexico and four and a half months advance for Philippines.

Family 2A – most countries retrogressed to January 2007; Mexico advanced to January 2006.

Family 2B – world numbers stalled at April 2003; Dominican Republic advances to January 2001; Mexico advanced one week and Philippines advances two months.

Family 3rd – most countries stalled at January 2001; Philippines advances a month and a half to December 08, 1991; Mexico retrogresses three weeks to 01 November 1992.

Family 4th – most countries stalled at January 2000; Philippines stalled at 15 January 1988; Mexico advances three weeks to 22 January 1996.

RETROGRESSION OF FAMILY PREFERENCE CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family F2A preference category has required the retrogression of the Worldwide, China-mainland born, Dominican Republic, India, and Philippines cut-off dates for the month of March. Should the current and recent retrogressions have the intended impact to slow demand for numbers, it is anticipated that these cut-off could begin to move forward slowly in the coming months.

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

Employment-Based

Employment 1st – still current in all categories

Employment 2nd – no movement for India; one week improvement for China (08 July 2006) and still stalled for India (8 May 2006).

Employment 3rd – three months advance for most countries to 01 July 2005; three week advance for China to 22 January 2004; three month advance for Dominican Republic to 01 July 2005; three week advance for India to 15 March 2002; Mexico jumps six months to 08 January 2004; three month advance for Philippines to 01 July 2005.

Employment 3rd Other Workers – most countries advance six weeks to 15 June 2003; China stalled to 22 April 2003; Dominican Republic advances six weeks to 15 June 2003; India advances three weeks to 15 March 2002; Mexico stalled at 01 May 2003; Philippines advances six weeks to 15 June 2003.

Employment 4th – still current in all categories

Employment 5th – still current in all categories

Demand Data and EB3-EB2 Porting Calculations

Demand Data that is used to determine cut-off dates for Employment Based Category has been released. You can find Demand Data here. Based on released demand data, visa demand for EB2-India to reach 01 January 2007 has increased from 13,150 to 13,175 from February 2011 to March 2011. This portends that EB2-India will not see any movement in March 2011 Visa Bulletin.

Demand Data for EB2-India for last 4 months

Cumulative Demand	Dec 2010	Jan 2011	Feb 2011	March 2011
01 January 2007	13,150	13,125	13,150	13,175

How to use this data to predict EB3-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-EB2 Porting = (Demand for current month) - (Demand for past month) + 233

	Dec 2010	Jan 2011	Feb 2011	March 2011
EB3-EB2 Porting	258	208	258	258

This suggests that on an average 260 cases are ported every month. This brings total to 3120 cases for a year as long as this trends continue.

Fallacy to above calculations
One fallacy to above method is 'Hidden Demand'. We are not sure about number of ported cases that are received and approved same month due to interfiling. This is what I call 'Hidden Demand', as it could not be accounted for in each month's released demand data. On an average it is taking 20 days to get a green card for a case which is ported and is already pre-adjudicated to use visa numbers. So these cases may not show up in demand data.

How to evaluate current trends in EB3 to EB2 porting?
There is no simple way to predict current trend in EB3 to EB2 porting. One way that I plan to estimate current trend in EB3 to EB2 porting is use of Google Analytics. With Google Analytics, I can drill down to each content on this website and see number of "unique visits" that I have received on each topic every day. This data is well plotted on Google Analytics and could be shared on this blog. This could at least help in breaking down number of individuals who are thinking or actually porting from EB3 to EB2. Results could be complete morass, but I think this can throw a little light on current trend in porting.

Currently this website has three posts on EB3 to EB2 porting.

• ?

I plan to analyze each of these posts to predict EB3 to EB2 porting numbers. I believe individuals visiting these topics are either thinking of porting their cases or are in middle of filing new PERM under EB2 category. This data could be leading indicator for the demand that may hit in coming months. The data set that I have analyzed so far suggests on average '20' unique visitors are interested in reading one of the above topics. If we assume that 80% of these individuals are either thinking of porting their cases or actually eligible to porting, number comes around '480' individuals for a month and around '5760' cases for a year. But again this is a small data set with lot of uncertainty. I plan to collect data until second week of March and further analyze it to share results here on website.

Prediction for EB2 Category for FY 2011 - Employment Based Green Card

Here is the Prediction for EB2 Category cutoff date movement for Fiscal Year 2011. Basis for this prediction is simple calculations (see below) which is done based on available data i.e. visa statistics recently released for CY 2010, PERM data published by DOL for CY 2010, latest trend on Trackitt for 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. Dates are predicted based on visa allotment available each year for each country and total spillover that is expected in FY 2011. In each case, Optimistic, Realistic and Worst-Case scenario is predicted.

New Predictions - Last Updated - 01 May 2011

We have added new sections for PWMB and Porting under calculation. Please use our reference mentioned in the PWMB section to calculate total visa based on August visa bulletin cut-off date. We should only consider demand due to porting and PWMB upto August visa bulletin cut-off date for predicting EB2-IC movement for FY 2011. Any demand after August visa bulletin cut off date will not affect EB2-IC movement for this fiscal year. Please assume "August visa bulletin" cut-off date and calculate PWMB and assume Porting numbers based on our calculations. These field are User ENTERED only.

Our worst-case scenario is based on 28,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 30,600. For our worst case scenario we expect August Visa Bulletin to reach cut-off date of 1st November 2006. As per these assumptions EB2-IC PD dates would hardly reach 01 January 2007.

Our realistic scenario is based on 24,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 28,600. For our realistic case scenario we expect August Visa Bulletin to reach cut-off date of 1st November 2006. In this case, EB2-IC PD dates would reach 08 March 2007.

Our optimistic scenario is based on 20,000 unused EB1 visa numbers and EB2-ROW-M-P demand of 26,600. For our optimistic case scenario we expect August Visa Bulletin has to reach cut-off date of 1st January 2007. This bring more porting numbers. In this case, EB2-IC PD dates would reach 01 June 2007.

All these assumptions is based on receiving atleast 5974 unused visa numbers from EB5. Any huge reduction in number will make dates moving difficult. In this cases dates will hardly cross December 2006.

This is it from us until August visa bulletin. Good Luck.

New Predictions - Last Updated - 04 April 2011

Based on currently released statement by Mr. Oppenheim on 12,000 available unused visa numbers from EB1 category to EB2 for FY 2011, we are revising our Predictions for EB2 Category for FY 2011. We are reporting worst-case, realistic and optimistic scenarios for our predictions.

Realistic prediction (01 July 2007) is based on availability of atleast 16,000 unused visa numbers from EB-1 category. We are convinced that EB3-EB2 porting number predictions for individuals with PD before 08 May 06 is not more than 4500. We will stick to our predictions for EB2-ROW, EB4 and EB5 consumption unless we see different trend for rest of the year. Based on all these predictions, EB2-IC dates will progress to 1st July 2007 for FY 2011.

Worst-case (01 April 2007) would be seen only if 12000 unused visa numbers are available from EB1-category, and EB3-EB2 porting numbers would rise to 6000 due to introduction of new porting cases as and when dates would become current for post 08 May 2006 PD; especially if we see huge movement for May visa bulletin. This would give USCIS enough time to consider addition of these new petitions to count them towards available spillover. This jump of 1500 visa numbers to porting would also be used to offset addition of application from petitioners who had originally missed the boat during July 2007 fiasco.

Optimistic movement (01 October 2007) would be seen if EB1-category would yield 20,000 unused visa numbers. We do not predict dates to become current for everyone during FY 2011. If USCIS would not have enough buffer to predict movements for EB2-IC f post July 2007 for FY 2012, dates might move beyond October 2007 by 5-6 months during first quarter of FY 2012.

Predictions that were as of 03 Feb 2011

There are good chances that the dates for EB2-India and China would progress to 1st January 2007 as long as we would see EB-1 demand to be reasonable (around 34,000) and EB3-EB2 porting could stick to assumptions made in the calculations below. Any lower demand for EB-1 (around 30,000) in FY 2011 would take predictions to optimistic level (22nd March, 2007) as long as EB3-EB2 porting could hold it's ground.

In any case, dates are less likely to progress beyond 22nd March, 2007. Reason behind this assumpion is that any EB-1 demand below 30,000 would be offset by equal surge in EB2-ROW demand. We would notice worst-case scenario (8th November 2006) only if EB-1 demand would remain similar or about 38,000 as seen in CY 2010.

The 'unknown' that would pour cold water on each scenario is EB3-EB2 porting. If EB3-EB2 porting for individuals with PD between 2003 to 2007 will exceed 10,000, we might see dates not progressing beyond September 2006 in FY 2011.

We do not expect to achieve any spillover from Family-Based category.

Detailed analysis on Visa Demand data for each category could be seen below in the calculations.

You can enter porting and visa demand for each category in 'User ENTERED' box for your Priority date, and see if your PD would be current with those assumptions.

This Prediction will be updated as and when more data is published - Last Updated 04 April 2011

Notes

Understanding Spillover

Spill Across (SA): It is a horizontal reallocation of visas within a category. (Unused number from EB2 ROW will be allotted to EB2 -India and China)

Fall Down (FD) : It is the vertical reallocation of visas between categories (eg: unused numbers from eb1 go to eb2....) Unused visa numbers in a higher preference level can "fall-down" to lower preference categories. For example, excess EB1 numbers can "fall-down" to EB2.

Fall Up (FU): Unused visa numbers in EB4 and EB5 can "fall-up" to EB1 then to EB2

EB2 - India-China Allocation (IC) - Visa numbers allotment to India and China EB2-category. This is 2,800 for each country or total 5,600.

How spillover works?

Unused EB4 and EB5 => EB1 => Unused EB1 => EB2 ROW => EB2 Retrogressed

Visa Allocation available each year

EB1 - 40,000

EB2 -ROW-P-M - 34,400

EB2-IC - 5,600

EB4 - 7,854

EB5 - 7,854

Calculations

Cross Chargeability - Use your Spouse's Country of Birth for Green Card

If the principal and derivative beneficiaries were born in different countries, it may be possible to apply cross chargeability principles. This allows individual to expedite his or her green card by using priority date as per their spouse's country of birth. Principle of cross-chargeability can be used for employment-based and family- based green cards.

What is Cross Chargeability?

Visas are usually chargeable to the country of the beneficiary's place of birth. But one basic benefit of immigration to US is that USCIS wants to keep individual's family intact. If one family member were being charged to a country that is over-subscribed, while the other family members in the same preference category were charged to countries that are current, this would result in separation and undue hardship. To remedy this potential problem, the law allows in some situations for the family to elect whichever foreign state is more beneficial. The law seems to limit application to situations where it is necessary to prevent the separation of the spouses or separation of the children and parents. For example, if an Indian citizen is married to Canadian born citizen, he can elect to use ROW as country of chargeability. Law would apply for child as well where he can use his parents country of chargeability. Although vice-versa is not true.

Immigration and Nationality Act [INA 202 (b)(2)]
Rules for Chargeability: if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established for that fiscal year;

As per USCIS- "Under a provision of immigration law known as “cross-charging”, if your spouse was born in a country that is not subject to retrogression, you can “charge” against that country’s visa quota. Please note that your spouse must be born in that country. If she/he became a citizen of that country after being born in a country that is subject to retrogression, you cannot cross-charge to your spouse."


Note: There are exceptions to this rule for some countries (e.g. Kuwait offers citizenship to Original Kuwaiti nationals are those persons who were settled in Kuwait prior to 1920) which allows citizenship only to native people. In this case you may still be able to use cross-chargeabiliy as long as you can reproduce birth certificate issued by a government official from these countries.

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

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/eupdate.

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.com.

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.com. 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

EB3 to EB2 Porting with same (current) 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. 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.

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

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.

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

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.

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 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 6<sup>th 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)
.....</sup>

^{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.

Can one leave sponsoring employer soon after getting Green Card?

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".

Priority Date - How to recapture from previously filed petition ?

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

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.