EB2 India and China FY 2011 Movement - Analysis based on May Visa Bulletin

So May visa bulletin has been released and it brought disappointment to Indian and Chinese national under EB-2 Category. There were lot of hype and emotion around immigrant community that we would see a significant movement for EB2-IC in May Visa Bulletin due to availability of 12,000 unused visa numbers from EB-1 category (which is still available by the way). Here we would like to have a very critical analysis of the entire situation, statements made in Visa Bulletin, why we did not see ample movement in May visa bulletin, what we expect in coming bulletin, how this would change the predictions for EB2-IC over the course of year and of course, EB3-EB2 porting.

Why dates did not move to predicted December 2006 cut-off for EB2-IC?

Our predictions were based on availability of 12,000 unused visa numbers from EB1 category and half yearly EB2-ROW , EB4 and EB5 demand. Movement in May visa bulletin clearly suggests that former were not completely used and it is too early to use latter when we are just near early April, far from spillover season which usually commence in last quarter of fiscal year. In addition to this, DOS is worried about unknown demand from EB3 to EB2 upgrades. Before going into further detail, let's analyze Section "VISA AVAILABILITY DURING THE COMING MONTHS" in detail and read through each line carefully.

Analyzing "VISA AVAILABILITY DURING THE COMING MONTHS"

"Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high."

Above statement definitely bolsters the statement from Mr. Oppenhiem that EB1-demand is low and EB2-IC would at least receive 12000 visa numbers from them.

"Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)"

DOS here confirms that there are still thousands of "otherwise unused" visa number available from EB1-category but is worried about "unknown demand" from EB3 to EB2 porting which restricts them from moving the cut-off dates by bounds and leaps for EB2-IC. If you will read above quote carefully, it also suggests that the EB2-ROW demand is not high enough to consume any spillover and unused visa numbers for now would only be consumed by EB2-IC.

Allocation of “otherwise unused” numbers in accordance with Immigration and Nationality Act (INA) Section 202(a)(5)

"INA Section 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an Employment preference, then the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, there will be otherwise unused numbers in the Employment First and Second preferences."

Assures that there are otherwise unused numbers available from EB1 and EB2-ROW category. So we should expect some spillover from EB2-ROW. How much, is still to be seen. I would still assume at least 8000 -9000.

"Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. "

Since EB2-C has not reached it's annual limit (see below), DOS could not use available unused visa numbers to move China with EB2-India (unless it is last quarter where they have to move dates to avoid wastage of annual visa numbers) . This is one of the few reasons that entire "12000 unused visa numbers" was not used for May visa bulletin. At most EB2-I could have advanced to 01 August 2006, same PD as EB2-China. Though (INA) Section 202(a)(5) allows EB2-I to use available spillover but PD cut-off date cannot move beyond that of EB2-C PD.

"Since under INA Section 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates."

As known EB2-I would receive most of the otherwise unused visa numbers from EB1 and EB2-ROW compared to EB2-C as demand and PD cut-off date for EB2-I is earlier than EB2-C.

"Based on amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country, for the purpose of assuring that the maximum amount of available numbers will be used. Note that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit."

DOS just bolstering or justifying their decision of moving cut-off date for EB2-I to 01 July 2006 using "otherwise unused" numbers whereas EB2-C only moved due to it's allocated 233 visa monthly limit.

"For example, at present the India Employment Second preference cut-off date governs the use of numbers under Section 202(a)(5), India having reached its Employment Second annual limit; the China Employment Second preference cut-off date governs number use under the quarterly limit, since China has not yet reached its Employment Second annual limit."

Of all the statements, India has reached it's annual limit is most difficult to digest. We would discuss this in detail below. This could give some indication of EB3-EB2 porting numbers.

"The rate of number use under Section 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. This helps assure that all available Employment preference numbers will be used, while insuring that numbers also remain available for applicants from all other countries that have not yet reached their per-country limit."

DOS want to ensure that available spillover from all employment preference (EB1, EB2-ROW, EB4 and EB5) should be used for oversubscribed countries in a controlled manner but at the same time does not want to overuse the spillover for one country (India in this case), and thus ensuring that enough visa is available for applicants from other countries, which is yet to reach their per country limit (China, may be South Korea, other ROW countries).

"As mentioned earlier, the number of applicants who may be “upgrading” their status from Employment Third to Employment Second preference is unknown. As a result, the cut-off date which governs use of Section 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of “upgrade” demand in the pipeline while at the same time administering use of the available numbers. "

DOS just want to test the waters and want to ball-park the numbers for EB3 to EB2 porting before they can entirely use available spillover from other categories. It seems that so far they have just thrown otherwise unused 2800 available visa numbers from EB1 to gauge the demand for porting numbers. EB2-IC still have at least 9000 unused visa numbers from EB1-category that will be used later in year.

"This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year. However, it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement."

It is unclear to me if DOS is suggesting that there is a possibility of visa wastage this year due to lack of cut-off date movement (which will be terrible) or they are suggesting that this action would restrict them from wasting any visas. It is not explicitly stated and completely ambiguous to me.

Summarizing above statements and predicting movements in coming months.

"Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time."

Since DOS would not know any real EB2-IC demand due to EB3 to EB2 porting until May end or early week of June (demand would only start coming after 1st May 2011) , we expect no or limited movement for EB2-I until July visa bulletin. If demand would rise or surge in month of May-June due to EB3-EB2 porting, we expect movement by few weeks in July visa bulletin. Do not expect spillover to kick in until August-September in this case. In meantime EB2-C will keep on moving by a week every month based on it's annual visa allocation.

Of this entire situation, one good thing is that DOS moved dates only by two months and not by huge amount because we expect EB3 to EB2 porting to be a decent number around 1500 for folks with PD beyond 08 May 2006 and before 2007. This high demand would have overwhelmed DOS and EB2-I could have ended up seeing lesser movement for rest of the fiscal year; greater movement is still a possibility due to ONLY two months advancement. This may be a "Blessing in Disguise" after all for EB2-I.

EB3 to EB2 Porting and Annual Limit for EB2-India reached
DOS mentioned that annual limit for EB2 category for India is reached which is still little shocking. There could be two scenarios to it. Lets discuss them in detail here.

a) DOS moved dates for EB2-IC in FY 2010 to 08 May 2006 without considering or (knowing) the real demand for EB3 to EB2 porting and USCIS/DOS were later burned with number of new applications they received that were far beyond available unused visa numbers from FY 2010. So DOS continued to use visa numbers from EB2-I current fiscal year allocation to satisfy demand from previous year in addition to demand from all new EB3-EB2 porting applications post September 2011. In order to avoid retrogressing cut-off dates for EB2-I and to fulfill backlog demand, entire annual visa allocation limit for EB2-I was utilized. Thus DOS wants to be very careful for this fiscal year and would move cut-off dates in a very controlled manner so not to underestimate demand from EB3 to EB2 porting. This suggests that DOS rather be on underside for annual limit and waste few visas rather than underestimating the porting demand and consuming more than annual limit.

OR

b) EB3 to EB2 porting is really very high which is not transparent in monthly demand data due to continuous turnover. Utilizing complete annual limit for EB2-I suggests that EB3 to EB2 porting for fiscal year so far is around 3000 and this would convert into 6000 porting numbers plus addition of new EB3 to EB2 porting application with PD beyond 08 May 2006 PD for entire year. So yearly upgrade could be somewhere between 6000-7500 depending upon how and when dates will progress in coming months.

Predictions for EB2 in light of new developments

We would still like to say that in worst case scenario we are still marching towards our current worst-case scenario of 01 April 2007, which apparently could become realistic scenario due to conservative DOS approach and potential for some spillover going unused or wasted. It highly depends on how EB3 to EB2 porting demand would shake up in coming two months. A steep increase in demand would make DOS more conservative and dates reaching 01 January 2007 would be a challenge.

I still have a hunch that 01 July 2007 is a possibility as long as DOS can be little aggressive and we will see decent movement in July visa bulletin.

Again as mentioned before, dates would never become current for EB2-IC to open the gates to build huge inventory for future I-485s .DOS would always moves dates in controlled manner in forthcoming years.

Concerns - Two Fold

• This may a bold statement but it looks like AILA is guiding DOS too much on how to advance Priority Dates than it being vice-versa. All hype of unknown high EB3 to EB2 upgrades has come from AILA. I really doubt EB3 to EB2 porting number is so high and DOS is getting heedlessly so conservative in their approach . The numbers may be high but I am still not convinced. We would know in few months.
  

• The worry that if dates are not progressed enough in July- August visa bulletin, some visa numbers can go waste which otherwise could be used wisely.

F.A.Q on AC21 portability and Similar Job Classification

Introduction

Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j). This portion of the INA is provided below for convenience:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification. Within these questions and answers, the term “port” or “porting” means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition. For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.

Questions and Answers

Q1. What is an “occupational classification”?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.

The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.

• [47]-2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.
• 47-[2]022: The third digit, “2” represents the minor group, which includes all construction trade workers.
• 47-2[02]2: The forth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
• 47-202[2]: The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.

47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
47-2022 Stonemasons

No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit). A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.

Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:

• The job duties of both positions
• The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
• The wages associated with each position

USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?
A3. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.

When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.

In the example in Q.1, the “47” encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.

For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:

Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.

The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:

Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.

Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.

Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.

Q5. Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

Last updated:04/07/2011

Source - USCIS

FAQ on OPT and F1 Status for Students under H1B Cap-Gap

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?
A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:04/01/2011

Source - USCIS

Possible EB2 Movement in May Visa Bulletin - Updated Information

Here is the update on Possible EB-2 Priority Date Movement in the May Visa Bulletin. AILA has updated this after following-up on earlier observation of at least 12,000 unused visa numbers from EB1 to EB2. Mr. Oppenheim suggested that these unused visa numbers will be used entirely for May 2011 Visa Bulletin.

Cite as "AILA InfoNet Doc. No. 11040563 (posted Apr. 5, 2011)"

"Following-up on his earlier observations on EB-1 demand and "spill-down" to EB-2 reported on InfoNet on March 29, 2011 (InfoNet Doc. No. 11032960), Charlie Oppenheim discussed scenarios for EB-2 movement in the coming months. In preparation of the May 2011 Visa Bulletin, DOS will consider the approximately 12,000 unused EB-1 numbers that will "spill-down" to EB-2, EB-2 demand and possible unused numbers, and will consult with USCIS on its processing potential. A quick look by DOS at this point indicates that there is the possibility for greater advancement of the India EB-2 category than had earlier been thought. Doing so will give DOS better visibility into EB-3 upgrade demand in the pipeline, and will better ensure that all visas allowed annually are used. However, a rapid advance could spur a surge in demand that could impact the cut-off dates later in the year. The May Visa Bulletin, generally issued mid-April, will contain a discussion of visa availability projections for the remainder of the year."

It is interesting to see that DOL would progress dates as much as possible and then will move them back if they will see high surge in demand. Dates are predicted to move in light of 12,000 unused visa numbers, current EB2-ROW demand and some unused numbers from EB4 and EB5. Lets hope for maximum movement for EB2-IC in coming months. We will revise our May 2011 visa bulletin prediction for EB2-IC based on above statement.

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

Anonymous said...
Good Day, great work you are doing here. When a PD becomes current take me through the process that follows please.

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. There are two scenarios to it. 
 

a) If your I-140 is approved, you can file for I-485 for Adjustment of Status (AOS). Once I-485 application is approved, the applicant becomes a lawful permanent resident for US and receives green card.

b) If your I-140 is not filed or approved, you can concurrently file for I-140 and I-485. Your application for I-140 would be handled by your employer and attorney. Only thing that is expected from you is the experience letters showcasing your qualification to the advertised PERM position. Your case will not be approved unless until your I-140 is approved.

In each case, I-485 is an individuals or primary applicant’s petition and employer is not involved in this at all. Only role of the employer is to provide you with the Employment letter (see below). During the filing of I-485, primary applicants are allowed to add in their dependents (wife and children) to their petition. 

I-485 Process / AOS

Adjustment of Status is the final stage of Green Card. After the completion of this process, the applicant becomes a lawful permanent resident of the US.

A applicant can opt either for I485 or Consular Processing (CP).

1. File form I-485 - In this case, the applicant can file for adjustment of status using form I485 for him/herself and family members while remain in US.

2. Consular Processing - In this case, applicant can apply for adjustment of status at the US Consular office in their home country. (We will only cover details related to I-485 in this article. CP will be explained later in other article)

Preparation before filing I-485

 

What documents required to file for I-485 AOS?

The following is a generic list of documents may required for applying for 485/AoS application. It is expected that you have these documents ready to file I-485 application. It is advisable to start looking into it as soon as you think your PD would become current in coming months. The generic list is as shown below:

• Form I-485 - Application to Register Permanent Residence or to Adjust Status.
• Birth Certificate - If you do not have Birth Certificate, you may need a non-availability birth certificate letter from your birth city’s government office AND affidavit or oath under public notary from your parents and one relative or family friends vouching for your birth-date.
• Copy of Passport page with nonimmigrant visa
• Color photographs as per new guidelines
• Fingerprints ( USCIS will notify when and where to provide finger Print)
• Fee
• Form G-325A, Biographic Information (for those between the ages of 14 and 79 years)
• Employment Letter - on employer's letterhead. This letter should confirm that the job on which the visa petition is based is available to you and it should mention your salary.
• Copy of your I-797 Notice of Action, showing that your I-140, Immigrant Petition for Alien Worker, has been received or approved by USCIS .
• Form I-693, Medical Examination of Aliens Seeking Adjustment of Status. ( Must be completed by the USCIS authorized physician)
• Form G-28 Notice of Entry of Appearance as Attorney or Representative. This will enable your lawyer to represent you.
• Form I-765, Application for Employment Authorization or EAD ( Optional, if you want Employment Authorization while the case is pending)
• Form I-131, Application for Travel Document ( Optional, if you want Travel document in case may have to travel out of USA while case is pending)
• You might be required to submit copies of marriage or divorce certificate, death certificate (of spouse), birth certificates for children and certified copies of any arrests or criminal records, depends on your case. In case of non-availability of marriage certificate you may need to furnish affidavit on your marriage and some other proof that you are currently married and stay together (joint bank accounts, joint lease and so on). See country specific requirements on primary and secondary evidence for birth  and marriage certificate in case you DO NOT have originals.

Medical Examination

All applicants must pass a medical examination conducted by a civil surgeon approved by the USCIS and submit copy of I-693 with their application. Medical Examination as old as one year is allowed. If you think that your dates will be current in coming months, please get this done as soon as possible. This way you can beat the traffic especially if your dates will become current during last quarter of fiscal year.

You can find the USCIS approved civil surgeon in your area - online. You can also contact USCIS' National Customer Service Center at 1-800-375-5283 to find an approved civil surgeon in your area. The civil surgeon will record the results of the examination on the Form I-693 and in sealed in an envelope which should be submitted to USCIS along with I-485 applications. You are responsible for paying all doctor and laboratory fees for the exam. You must carry your passport (or other form of photo identification) and your medical and vaccination history. If a condition is diagnosed which makes you inadmissible, you may still be eligible for immigration after completing treatment for the condition.

Employment Authorization Document (EAD), USCIS Form I-765

You and your eligible family member like spouse can apply for an EAD.
An approved EAD allows to work or business to the secondary applicant (spouse).
The primary applicant may take up a part-time job or start a business as long continue working for the employer who filed for the Green Card.

Application for EAD (Form I-765) can be filed concurrently along with I-485 or any time after that as long as I-485 application is pending. The following documents must accompany the form:

• Fee payable by check or money
• 2 passport photographs taken within 30 days of filing the application and as per the new guidelines.
• Copies of both sides of your I-94 card
• Copies of both sides of your EAD if you already had one.

Depends on the service center, EAD approval may take few weeks to few months to get approval. For those who are secondary applicant and does not have a Social Security Number or not allowed to work can apply for Social Security Number , after receiving the EAD Card.

Advance Parole (Travel Document)

The Advance Parole or Travel Document is used to apply for admission to the United States upon return from abroad without having to obtain a visa from a US Embassy or consulate. You must fill Form I-131 for Advance Parole. There is a non refundable Filling fee to be paid by check or money order. This document is usually issued for the time it takes for the AOS application to be processed and is valid for multiple entries. Starting March 2011, both EAD and AP documents are issued on single card. Please ensure that you renew your EAD and AP in timely manner whenever you will travel outside US. If your AP would expire during your stay abroad or you traveled with expired AP, you will lose your AOS status and your I-485 will be denied. (This is not required if you are still in H1-B status. Please see below)

Maintaining your H-1B visa status during this time

It is not required but advisable to maintain your H1-B status even if you have file for I-485 application. Remember that H1-B is dual intent visa and you can file for AOS and still allowed to maintain your H1-B status. This is particularly important incase your AOS is denied and you would not lose your H1-B.

Including your spouse and children for AOS

You can include your spouse and children aged less than 21 at the time of filing I-485 for Adjustment of Status. You must submit all the documents required for AOS for each dependent (except form G-28). In addition, you may need to file Form I-134 (Affidavit of Support) for each dependent. Other documents may include:

• Copy of passport with I-94
• Copy of I-797 and H-4 visa
• Copy of Birth certificate
• Copy of Marriage certificate
• Original Bank statements
• Passport photos as per new regulations

After Submitting I-485 application

Once you would submit your I-485 form, following things would happen.

a) Fingerprinting/Biometrics

b) FBI Name Check

c) Interview (Waived for most applicants)

 

Fingerprinting/ Biometrics

When applying for I-485, you will be fingerprinted so the USCIS can check for FBI and criminal records. The USCIS accepts fingerprint cards prepared only by authorized sites such as Application Support Centers (ASCs), and US Consular offices and military installations abroad. Once you file for I-485, the USCIS will send you a letter with an appointment for fingerprinting and Biometrics for green card at the nearest ASC location. You must have the letter with you when you go in for biometrics. There is a charge per person. Once your biometrics is taken, you will be issued a card FD-258.
Remember: You should not submit the FD-258 card with your application. If you do so, the card will be rejected and you will have to go for fingerprinting again.

FBI Name Check

FBI name check is conducted by the National Name Check Program (NNCP) located in Washington DC. Its main mission is to look up an individual's name in a giant database (Central Records System - CRS) and find any matching records. It may sound simple but is actually a multi-step process that can get quite complicated. This is a typical work flow:

· Receiving requests: USCIS submit thousands of names weekly to NNCP on magnetic tapes;

· Electronic search: Batch names are searched against the CRS' General Indices;

· Easy clearance: If no record was found in either main files or reference files of the Universal Index (UNI) for a particular name, the name check is considered cleared;

· Manual search: Names returned with potential matching records ("hits") are searched again manually. Additional names are cleared after this step;

· Manual review: Names still remaining will be reviewed manually, and matching records located across the country must be forwarded to the agent for analysis.

· Completion: Results are returned to the USCIS who will make a decision as to what effects the information may have on the case.

As per June 2009 – FBI Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days. You do not have to do anything here. Your FP/Biometrics will take care of this. But your case cannot be approved until FBI Name Check is cleared.

Appear for an interview

Usually the interview is waived for most applicants. If you are called for an interview, it will be a formality. It is advisable to have your lawyer accompany you. The reason for the interview is to clarify any changes or corrections and to verify that all documents are correct. You may be asked to carry any documents that were missing or incorrect. You may be asked for tax records and pay stubs.

If your interview is waived (or if it is completed and you meet all requirements) you will receive an approval letter from the USCIS. You must go to the local USCIS service center with your passport and all I-94 and EAD cards. A temporary green card stamp (I-551) will be placed on your passport. This is an interim green card in case you need to travel out of the US. Within a few months, your green card will arrive in the mail - it is not green in color and looks more like a driver's license or a credit card.

What to do if you case is beyond normal processing time for I-485 application for your National Service Center?

You can do following things (though not advisable for cases which are not already pre-adjudicated) once your case is beyond normal processing time.

a) Open Service Request with USCIS

b) Contact your local Congressmen

c) Get Infopass

Texas Service Center Premium Processing Unit Sends Old I-140 Receipt Acceptance Email Notices

On April 1st 2011 many petitioners received case acceptance email, SMS or online change of status from the Texas Service Center for the I-140 cases that were already approved, denied, currently has RFE or are either currently in Initial Review status. This is true for the I-140 cases that were filed under premium processing as far back as March 2010.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

*** DO NOT RESPOND TO THIS E-MAIL ***

The last processing action taken on your case

Receipt Number: SRCxxxxxxxxxx

Application Type: I140 , IMMIGRANT PETITION FOR ALIEN WORKER

Your Case Status: Acceptance

On April 1, 2011, we received this I140 IMMIGRANT PETITION FOR ALIEN WORKER and we e-mailed you a notice describing how we will process your case. Please follow any instructions on this notice. This case is being processed at our TEXAS SERVICE CENTER location. You will be notified by mail when a decision is made, or if the office needs something from you. If you move while this case is pending, please use our Change of Address online tool to update your case with your new address or call our customer service center at 1-800-375-5283.


During the acceptance step USCIS reviews newly received applications and petitions to ensure that they are properly filed (i.e. signed by the applicant, appropriate fees, etc.) USCIS issues a receipt number for the application or petition, and sends a receipt notice to the applicant or petitioner.

Applications and petitions that are not properly filed are rejected with an explanation of why the application is rejected and the corrective action needed. Rejected applications or petitions do not retain their filing date.

The acceptance step is typically completed within 2 business days of when the application is received. With mail time it may take several weeks for you to get the receipt or rejection notice in the mail. If you do not receive your notice within 30 days of mailing your application, please contact our national customer service center at 1-800-375-5283.


If you have questions or concerns about your application or the case status results listed above, or if you have not received a decision from USCIS within the current processing time listed*, please contact USCIS Customer Service at (800) 375-5283.

*Current processing times can be found on the USCIS website at www.uscis.gov under Check Processing Times.

*** Please do not respond to this e-mail message.

Sincerely,

The U.S. Citizenship and Immigration Services (USCIS)

Reason for this email

This is due to sudden outburst of delayed emails that was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused."

Current status on the issue
Most of the cases that had changed to acceptance has now changed back to their last updated original status. In case you have not seen any change in yours status please ask your attorney to contact USCIS Customer Service at (800) 375-5283 from Monday to Friday. This should be taken care of as soon as possible.

H-1B FY 2012 Cap Season Starts Tomorrow

The H-1B Program

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 about the H-1B program, see the link to the left under temporary workers for H-1B Specialty Occupations and Fashion Models.

How USCIS Determines if an H-1B Petition is Subject to the FY 2012 Cap

We use the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

FY 2012 H-1B Cap Count

Cap Type	Cap Amount	Cap Eligible Petitions	Date of Last Count
H-1B Regular Cap	65,000
H-1B Master’s Exemption	20,000

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are 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.

When to File an FY 2012 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2012 cap on April 1, 2011. You may file an H-1B petition no more than 6-months in advance of the requested start date.

• Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

Note: If you request a start date for a FY 2012 cap-subject H-1B petition that is prior to Oct. 1, 2011 or submit a cap-subject petition prior to April 1, 2011, your petition will be rejected.

How to Ensure USCIS Considers Your H-1B Cap-Subject Petition Properly Filed

Please comply with the following to ensure that your petition is properly filed:

• Complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 17 through 19). We accept Form I-129 with a revision date of November 23, 2010, or later.
  • Original signatures, preferably in blue ink, are required on each form.
• Include a signed check or money order with the correct fee amount.
• Ensure that all required documentation and evidence is submitted with the petition at the time of filing to ensure timely processing.

Note: It is your responsibility to ensure that Form I-129 is completed accurately. Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, be sure to file the petition at the correct USCIS Service Center. We will reject all H-1B petitions filed at the wrong location. See section below on “Where to Mail Your H-1B Cap-Subject Petition.”

Additional Documents Required With Your Petition

Labor Condition Application (LCA)

You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition. A copy of the LCA is acceptable.

Note: USCIS encourages petitioners to keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly. If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.

Please see Department of Labor’s Office of Foreign Labor Certification website for further information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit evidence of the beneficiary’s educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:

• A copy of the beneficiary’s final transcript; or
• A letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).

If you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad. USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.

Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Where to Mail Your H-1B Cap-Subject Petition

You must file your petition at the correct Service Center depending on the jurisdiction of the H-1B beneficiary’s work location as specified in the petition. We have established specific mailing addresses for purposes of identification and processing of H-1B cap-subject cases.

To determine which jurisdiction you are in, see the link to the right for H-1B filing locations.

Note: A separate mailing address has been established for certain types of educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations.

Please read the filing instructions very carefully. If you file your petition incorrectly, we will reject the petition. Rejected petitions will not retain a filing date.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting. Please refer to Fee Exemption and/or Determination (pages 17 and 18 of Form I-129) for detailed instructions on fees.

The following fees may be required with a cap-subject petition:

Base filing fee:

• $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee

(see H-1B Data Collection and Filing Fee Exemption Supplement, Part B):

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

• $500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230

• $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.

Premium Processing fee:

• $1,225 for employers seeking Premium Processing Service

Checks

Make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Money Orders

Money orders must be properly endorsed.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee. Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. See 8 CFR 103.2(a)(7)(i).

While petitioners are generally provided the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date is not established until and unless the fee deficiency has been corrected. H-1B cap-subject petitions with non-payable fees will be given a new filing date the day the fee deficiency has been corrected, as long as the cap has not been met. If the new filing date is after the cap has been met, the petition will be rejected.

Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service. Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. To request premium processing submit:

• the Form I-907 and
• the filing fee of $1,225 (this fee is in addition to the required base filing and other applicable fees and cannot be waived).

You can file the Form I-907 and corresponding fee:

• at the same time as Form I-129 or
• at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, be sure to include the receipt number (e.g., EAC 11 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: We will only accept the 08/10/09N (or later) edition of Form I-907.

Please see the link to the right for more information concerning the Premium Processing program.

Organizing your H-1B package

Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129. Use the following codes:

• Regular Cap (65,000 regular cap cases, not including Chile/Singapore cap cases)
• C/S Cap (Chile/Singapore H-1B1s)
• U.S. Master’s (20,000 exemption for beneficiaries with U.S. master’s or higher degrees)

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred. Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

• Form I-907 (if filing for Premium Processing Service)
• Form G-28 (if represented by an attorney or accredited representative)
• Form I-129, Petition for a Nonimmigrant Worker
• H Classification Supplement to Form I-129
• H-1B Data Collection and Filing Fee Exemption Supplement
• All supporting documentation to establish eligibility
• Provide a Table of Contents for supporting documentation
  • Tab items as listed in Table of Contents
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  • Form I-566 if the beneficiary is a current A or G nonimmigrant
  • DOL certified LCA, Form ETA 9035
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.
• Duplicate copy of the petition, if necessary. Clearly indentify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package. Individual petition envelopes should be marked with the following labels to reference the type of petition:

• Master’s Premium
• Master’s
• Regular Premium
• Regular
• Chile/Singapore

Filing Tips:

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, a properly executed Form G-28 should be submitted. Each Form G-28 should include the following:

• All sections completed
• The printed name and signature of the representative
• The original signature of the petitioner.

Form I-129, Petition for a Nonimmigrant Worker

• Complete all sections of the form accurately.
• Ensure that the petition is properly signed. Please see the Related Links section for more information on properly signing the petition.
• Provide the petitioner name and address on the USCIS petition form. It is critical that petitioners accurately provide their name and address on the USCIS petition form. This facilitates USCIS in matching information from the petition with information received from the Independent Information Provider (IIP) through the Validation Instrument for Business Enterprises (VIBE). Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.
• Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy). Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
• If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing. For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is suggested, but not necessary.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (question 3), please also include the actual nonimmigrant classification held (e.g. H-1B or L-1).
• Petitioner must sign the form, preferably in blue ink.

H-1B Data Collection and Filing Fee Supplement form (pages 17 through 19 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• Please enclose page 17 through 19 of the Form I-129 (with a revision date of November 23, 2010 or later).
• Be sure to answer appropriately in Part A, question 5 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution.

Form I-907, Request for Premium Processing

• Please be sure to complete all sections of the form accurately with original signatures. Note: We will accept the 08/10/09 edition of Form I-907 (or later)
• The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing. Otherwise, the petitioner’s signature is required. Preferably, the signature(s) should be in blue ink.
• Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

Source - www.uscis.gov

EB2 Category will see atleast 12,000 Spillover from EB1 for FY 2011

As per recent statement by Mr. Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, it appears that India EB2 cutoff dates will advance, perhaps substantially, in May. This means that China EB2 cutoff dates will also advance with them.

Mr. Oppenheim said “[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

Statement in red could be read in two ways

a) This means bare minimum 12000 will be available for entire fiscal year based on current indication or trend.
OR
b) This means 12000 visa numbers are available from EB1 right now and we can expect 24,000 unused visa numbers for rest of the year.

On a conservative side, I would think at least 12000 unused EB1 visa numbers will be available for spillover for the entire fiscal year. Apart from this we could also expect spillover from unused EB4, EB5 and EB2-ROW-P-M category later in the last quarter.

But contradictory to a) is the statement published on the other website which suggests "The Department of State announced that the Indian EB2 category is expected to advance one week in the May Visa Bulletin. The demand for EB1visa numbers has decreased by 50 percent this fiscal year. Last year from October 2009 to February 2010, 22,000 EB1 numbers were used. During the same period this year, only 10,000 to 11,000 have been used. EB1 will be current worldwide all fiscal year. This will free up an estimated 12,000 visa numbers to fall down from EB1 to EB2 this year."

Please ignore the statement on movement by only one week, which seems little too unrealistic. If we closely look at statement in red, this suggest at least 18000 spillover from EB1 to EB2 category this year.

Based on above two scenarios, a) and b), we will update our "May visa Bulletin Prediction" and "Prediction for EB2 Category for FY 2011".

Indeed this is a good news for EB2-India and China applicants who are waiting for some visa numbers for long time.

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. How this will affect further processing times no one knows.

PERM Processing Times as of March 9, 2011

• Analyst Reviews: February 2011
• Audits: March 2009
• Standard Appeals: June 2008
• Government Error Appeals: Current

H1B FY 2012 - Accepting Petitions April 1, 2011

For all individuals who will be filing their H1B Petitions in FY 2012, USCIS will start accepting application starting April 1, 2011. Please note that cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. It is important that your case should reach USCIS in timely manner with the correct fees. This is especially important if USCIS would receive enough cap - subjected applications to reach cap on first five working days from April 1, 2011. In this case USCIS would usually held a lottery where application considered for processing in FY 2012 will be randomly selected. Please note that this year TARP funded companies are allowed to file H1B petitions for their employees. They no more have 'H1B Restrictions' that were imposed on them in FY 2009, FY 2010 and FY 2011. Based on this, it is difficult to predict how soon H1B CAP will be reached this year. Last year H1B CAP was not reached until 26th January 2011. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

How H1B visa Lottery works?

How does the lottery work?

There is a limit to the number of first-time H1B cases that can be filed each year. These filings start on April 1, 2011 for the FY2012 quota or "cap." The USCIS allow a minimum window of five business days in April each year for the USCIS to receive H1B cap-subject cases. Thus, if the cap limit is reached during any of the first five days, a random lottery selection then will be conducted to determine which cases filed within the five-day timeframe will be eligible for a cap number. The cases then are reviewed and, if approved, generally are counted against the cap.

What happens if the H1B cap is not met within 5 business days?

If the cap is not met during the first five days, then filings will be accepted for additional days, until the cap is met. There will be a lottery, then, of the cases received on the day the cap is met, only. All earlier cases would not be subject to this lottery, and would be eligible for a cap number, if approved.

What happens to the U.S. masters' quota H1B cap filings during random lottery?

Based upon FY 2010 procedures, the lottery actually is conducted in two steps. There are two separate cap allocations. There are 20,000 "advanced degree" cap exemptions, for cases filed for foreign nationals who have completed U.S. masters' degrees or above. This is separate from the regular cap of 65,000 (minus a set aside for certain treaty cases). The USCIS will first determine if advanced-degree cap has been met in the first five days. If so, a lottery will be conducted for those cases. Any cases not selected would be eligible then for consideration and subject to the H1B random lottery under the regular cap. If the regular cap is reached in the first five days, then a lottery would be conducted consisting of all the regular cases filed in that timeframe, as well as any advanced-degree cases that are not selected in the advanced-degree lottery. (If only the regular cap is met in the first five days, then the lottery of those cases would not include advanced degree cases.)
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When can we expect to find out if the quota is met?

The USCIS has made improvements to its counting and lottery system, so that announcements about the number of filings normally are issued fairly quickly. They provide information on the number of cases received within about a week, and also advised of the date set for the lottery.
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Will there be a lottery this year?

There is no likelihood that lottery will be held during first five-days of opening of FY 2012 H1B season. We do expect CAP to reach early this year because company who received TARP funds are eligible to file H1B petitions for their employees with less 'H1B Restrictions'

What were the 'H1B Restrictions' for TARP funded companies?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers. These additional attestations are:

(1) that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position; and

(2) that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Other topics on H1B that first time filers should read.

• H1B 'Cap Exempt' Visa as an Option?

USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011 March 18, 2011 WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt. USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap. Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at: Institutions of higher education or related or affiliated nonprofit entities; Nonprofit research organizations; or Governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to process petitions filed to: Extend the amount of time a current H-1B worker may remain in the United States; Change the terms of employment for current H-1B workers; Allow current H-1B workers to change employers; and Allow current H-1B workers to work concurrently in a second H-1B position. H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition. For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. Last updated:03/18/2011