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

Common question asked by many primary I-485 applicants who had previously filed I-485 Adjustment of Status (AOS) application, which is still pending with USCIS,  is about adding their spouses or children (derivatives) to their pending I-485 application. Since for some oversubscribed countries cut-off dates tend to retrogress, such derivatives can only be added to their I-485 case after their priority dates become current again. At this point there is always a concern among the petitioner that their case will be approved before their derivatives application would reach USCIS. Most of these derivatives during this time are on non-immigrant status like (H4, F4, J4 etc) and can become out of status as soon as primary applicants I-485 is approved.

Under such cases individual can still file I-485 application for adjustment of status under Section 245(k) of INA. In order to use Section 245(k) for a case where Primary applicant is approved before derivative applicants file reaches USCIS, these two following criteria should be met :

•  Primary applicant should be married to spouse or be father/mother of a derivative child before I-485 approval.

• Derivative applicants should have last entered in US lawfully on a non-immigrant status and has since their last lawful admission to the United States have not, for an aggregate period of more than 180 days violated their status. (see below for details)

 

Understanding Section 245(k) and how it can be used?

Family and employment-based immigrants have 3 ways to apply for adjustment of status:

• 245(a) – The general adjustment of status provision which requires continual maintenance of status since arrival. 

• 245(i) – This provision allows an adjustment of status application to be filed by a “grandfathered” alien.  

• 245(k) – Preserves eligibility under 245(a) for employment- based immigrants with certain status violations that might otherwise bar adjustment. 

In general, Section 245(a) allows an admissible alien who was inspected and admitted or paroled into the United States to apply for permanent resident status from within the United States if the alien is the beneficiary of an approved immigrant visa petition and has an immigrant visa number immediately available.

Section 245(c) establishes eight (8) bars to adjustment under Section 245(a). For certain employment-based adjustment applicants, section 245(k) grants relief from three (3) of those bars: sections 245(c)(2), (c)(7) and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.

 Section 245 (k)

 

(d) Section 245(k) of the Act: Exemptions to the 245(c)(2), (c)(7) and (c)(8) Bars to Adjustment for Certain Employment-Based Adjustment of Status Applicants.

(1) General Provisions. Section 245(k) can render the normal bars to adjustment of status found in section 245(c)(2), (c)(7), and (c)(8) inapplicable to certain employment-based adjustment of status applicants who, since their last lawful admission to the United States have not, for an aggregate period of more than 180 days: 

(A) failed to maintain, continuously, a lawful status; ( violation as per 245(c)(7) )

(B) engaged in unauthorized employment; ( violation as per 245(c)(2) ) or

(C) otherwise violated the terms and conditions of his or her admission (violation as per 245(c)(8) )

  

(2) Applicability. The following classes of employment-based adjustment of status applicants under section 245(a) are eligible for relief under 245(k):

(A)  An alien who is present in the United States pursuant to a lawful admission and whose adjustment of status application is based on an approved immigrant petition for them as the beneficiary in one of the following classifications:

• EB-1: aliens of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives;
• EB-2: aliens who are members of the professions holding advanced degrees or aliens of exceptional ability;
• EB-3: skilled workers, professionals, and other workers; or 
• EB-4: religious workers described in section 101(a)(27)(C) of the Act only.

 Other employment-based immigrant classifications and other immigrant classifications are not a basis for consideration under section 245(k).

(B)  An eligible derivative of an alien described in 2 (A) may benefit from section 245(k) in his or her own right if he or she has failed to maintain continuously a lawful status, worked without authorization, or otherwise violated the terms and conditions of his or her admission for an aggregate of 180 days or less pursuant to a lawful admission.

(3) Application Process. An alien must properly file an adjustment of status application under section 245(a) in accordance with 8 CFR 245.2 and 103.2. An applicant invoking 245(k) is not required to submit additional application forms or payment of a penalty surcharge. Thus, it is the responsibility of USCIS to determine section 245(k) applicability based on the evidence submitted in support of the adjustment of status application. To the extent evidence is deficient or absent, USCIS may issue a request(s) for evidence or notice of intent to deny asking for specific evidence in support of eligibility for relief under section 245(k).

 (4) Counting against the 180 days timeframe in (d)(1).

(A) General Guidelines. If the adjudicator determines that an employment-based adjustment of status applicant described in (d)(2) above is subject to any of the bars to adjustment of status set forth in Sections 245(c)(2), (c)(7), or (c)(8), then the adjudicator must determine whether the aggregate period in which the alien failed to continuously maintain lawful status, worked without authorization, or otherwise violated the terms and conditions of the alien’s admission since the date of alien’s last lawful admission to the United States is 180 days or less.

The guidance below describes the periods of time to be examined for purposes of calculating time against the 180-day period.

• The adjudicator must only examine the period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.
• An alien, however, who entered the United States pursuant to an advance parole document is not “lawfully admitted,” because the parole is not a final act with respect to admission. Thus, reentry based on a parole or advance parole does not start the clock over for the purpose of section 245(k).
• An alien may be subject to more than one bar or violation described in section 245(k)(2) at the same time. For example, an alien in B-2 status who worked without authorization will also have violated a lawful status and failed to maintain continuously a lawful status. USCIS reads the phrase “aggregate period exceeding 180 days” in section 245(k)(2) to refer to the total of all three types of violations rather than permit up to 180 days of each type of violation. Accordingly, the aggregate 180 day period must be calculated by adding together any and all days in which there is one or more of the violations, and each day in which one or more of these violations existed must be counted as one day. If USCIS reads section 245(k) to permit up to 180 days of each type of violation an alien could potentially accrue more than 180 total days of violations and remain eligible for adjustment of status. USCIS holds that the statute was not intended to permit such egregious violations.

(B) Engaged in Unauthorized Employment

(1) General. “Unauthorized employment” means any service or labor performed by an alien for an employer within the United States that is not authorized under 8 CFR 274a.12(a), (b), or (c) or exceeds the authorized period of employment. The filing of an adjustment of status application does not, in itself, authorize employment or excuse unauthorized employment, and accordingly the filing of an adjustment of status application will not stop the counting period of unauthorized employment. Therefore, all periods of unauthorized employment since the date of the alien’s last lawful admission, including any periods after the filing of an application for adjustment of status, must be counted until the date of the adjudication of the pending adjustment of status application. 

• With respect to engaging in unlawful employment, the count commences on the first date of the unauthorized employment and continues until the date the unauthorized employment ended, the date an employment authorization document (EAD) is approved, or the date the pending adjustment of status application is adjudicated. 

• It is completely within the control of the alien as to whether he or she engages in employment without authorization and, as stated above, the filing of an application for adjustment of status does not automatically authorize employment in the United States. Therefore, it is possible for an alien to accrue days of unauthorized employment against the 180 day period after the filing of the application for adjustment of status. To hold otherwise would not only reward an alien for engaging in unauthorized employment but it would also effectively eliminate the incentive and the need for an alien to maintain a valid employment authorization document in connection with the pending application for adjustment of status. Unlike an alien who has failed to maintain lawful nonimmigrant status, an alien who has worked without authorization may unilaterally avoid the accrual of additional days counted against such violation by simply terminating the unauthorized employment. 

• An alien’s engagement in unauthorized employment is dependent upon the existence of the alien’s employment or employer-employee relationship rather than simply the number of days the alien actually works or claims to have worked. Each day an alien engaged in unauthorized employment must be counted against the 180-day period regardless of whether or not the alien unlawfully worked a few hours on a given day, a part-time schedule, or a full-time schedule with leave benefits and weekend and holidays off. Absent evidence of interruptions in unauthorized employment, the adjudicator must consider each day since the date the unauthorized employment began as a day of unauthorized work regardless of the work schedule agreed to or maintained by the alien for the particular employer. For example, if an alien worked without authorization for four hours a day Monday through Friday throughout the month of April, all 30 days for that month must be counted as unauthorized employment. 

• For periods in which it appears that the alien has engaged in unauthorized employment, the alien bears the burden of establishing that any such periods were authorized or that he or she did not in fact engage in unauthorized employment. In addition, an alien who works without authorization after filing for adjustment of status will not stop the clock by departing the United States and re-entering pursuant to a valid advance parole document.

(2) Special Considerations. For purposes of section 245(c)(8) of the Act, an alien is not considered to be engaged in unauthorized employment while his or her properly filed adjustment of status application is pending final adjudication, if: 

• The alien has obtained permission from USCIS to engage in employment based on his or her pending adjustment of status application and such authorization remains valid; or 

• The alien had been granted employment authorization prior to the filing of the adjustment of status application and such authorization does not expire while the adjustment of status application is pending.

 (C) Failed to Maintain a Lawful Status and/or Violated the Terms of a Non immigrant Visa. 

(1) General. Expiration, revocation, or violation of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs the United States. 

In most cases, the 180-day counting period commences on the date the alien’s status expires, is revoked, or is violated following the alien’s most recent admission. In addition, with the exception of a dual intent nonimmigrant, a nonimmigrant is only required to maintain his or her nonimmigrant status until the time he or she properly files an adjustment of status application with USCIS, because most nonimmigrants who apply for adjustment of status are presumed to be intending immigrants and are no longer eligible to maintain a nonimmigrant status. 

Therefore, for purposes of the 180-day counting period, calculation of the number of days for failing to maintain status or violating a nonimmigrant visa will stop as of the date USCIS receives a properly filed adjustment of status application. 

Not withstanding, a properly filed adjustment of status application, in and of itself, does not accord lawful status or cure any violation of a nonimmigrant visa. For example, if an alien applied for adjustment of status three days prior to the expiration of his or her nonimmigrant status and the adjustment of status application was eventually denied, the alien will not be considered to be in lawful status after the expiration of the nonimmigrant status. Consequently, if the same alien files a second application for adjustment of status, the period after which the nonimmigrant status expired and during which the first adjustment of status application was pending counts against the 180-day period when considering eligibility for relief under 245(k) in the adjudication of the second adjustment of status application.

(2) Special Considerations. The adjudicator must consider the following when calculating the number of days an alien has failed to maintain a lawful status or violated the terms of a nonimmigrant visa. 

• The regulations define “lawful immigration status” at 8 CFR 245.1(d)(1). In examining any period where an application for extension of stay (EOS) or change of status (COS) was ultimately approved, the period during which the EOS or COS had been pending would be considered, in retrospect, a period in which the alien was in a lawful non-immigrant status regardless of whether the EOS or COS application was timely or untimely filed. The period would not be disqualifying for section 245(c) purposes, and the period would not count against any 180-day period under section 245(k).

• The period during which an alien has a pending EOS, COS, or adjustment of status application does not constitute, in and of itself, a period in which the alien is in a lawful “status.” 

• A period of unlawful status found to result only from a “technical violation” or through no fault of the applicant, as described in 8 CFR 245.1(d)(2), does not invoke the 245(c)(2) bar. Thus, such period does not count against the 180-day period. 

• An alien who complies with all the terms and conditions of his or her non-immigrant status does not violate the terms of such status merely by properly filing an adjustment of status application, provided the filing occurred before the alien’s non-immigrant status expired. 

• An F (student) or J (exchange visitor) non-immigrant is considered in “status” for such authorized period of time before and after completion of his or her educational objective or program in accordance with 8 CFR 214.2(f) and 8 CFR 214.2(j), respectively, provided that the F or J non-immigrant has not violated the terms and conditions of his or her status. 

• A reinstatement of F status under 8 CFR 214.2(f) or J status under 22 CFR 62.45 cures time out of or in violation of status only for the particular period of time covered by the reinstatement, so that such period does not count against the 180-day period.

(5) Effect of 245(k) Exemption. A determination of eligibility under section 245(k) renders inapplicable the normal bars to adjustment found in section 245(c)(2), (c)(7), and (c)(8). Section 245(k), however, does not provide an exemption from any other basis of ineligibility, such as entry without inspection or any ground of inadmissibility.

EB2 India & China - What to expect in FY 2012? - (Post Sep VB)

Cut-Off Dates has reached PD 15th April 2007 for EB2-India and China for FY 2011 in September bulletin, now what can we expect for FY 2012?

What movement do we expect for EB2-IC in FY 2012? 

Since now we know that EB2-India and China are stuck at 15^th April 2007 for this fiscal year, we can try and estimate what we can expect for this category in FY 2012.

Eb2-India and China still need 8000 more visas for EB2-IC to cross PD 15 August 2007. This is calculated plainly from the currently released visible demand data, without including 'People Who Missed the Boat" (PWMBs) during July 2007. Expected PWMB until 15 August 2007 cut-off date from September Visa bulletin cut-off date of 15 April 2007 are 8302. We firmly believe any PWMBs before July visa bulletin cut-off date of 08 March 2007 have good chance to get approved by September 30 or even in October, where USCIS usually tend to use some unused visa numbers from the last fiscal year.

So out of total PWMBs of 8,302 for EB2-IC until 15 August 2007, even if we assume that due to the economic recession and other unforeseen reasons, only 50% are eligible to pursue this, numbers still come out to be 4,151. So to sum up, without even crossing EB2-IC PD of July 2007, for next fiscal year EB2-IC has demand of 8,000 + 4,151 = 12,151.

Now we know as and when these PWMBs will become current and file for I-485 in order to become documentarily qualified, by that time we will be in Q2 or beyond for FY 2012. Based on annual limits and not considering any PWMBs, expected movement for EB2-IC is as tabulated below. This is based on no porting and no PWMBs. 

For EB2-India, movement will be very small or expect no movement for first quarter (Q1) and then in Q2 we can expect 1 week movement each month until DOS will try to intake extra inventory in Q3. EB2-China will progress much quicker than EB2-India. For EB2-China we can expect 4 weeks in Q1 and Q2 each, until DOS will allocate any extra movement to intake inventory for spillover season.

EB3-EB2 Porting and PWMBs before 15^th April 2007

Above tabulated estimation can all change, especially for EB2-India, if individuals in EB3 category with PD before 15 April 2007 will start porting. We expect EB3 to EB2 porting for FY 2012  will be at same level as FY 2011. Expected numbers should not be more than 2,800. Other than these porting numbers we should also consider calculated PWMBs before 15^th April 2007, which are 1,958. Again assuming that out of these only 50% are still eligible, this number comes out to be around 979. Out of these we expect 50% or more will use visa numbers from FY 2011 quota. So rollover backlog to FY 2012 will be 488.

So EB3 to EB2 Porting and PWMBs before 15 April 2007 that would be counted towards FY 2012 becomes 2,800 + 488 = 3,288. Of course, porting demand will be realized slowly and hence we can expect little but small movement for EB2- India. Movement depends on PWMB rollover and new porting demand. EB2-China should continue to move as outlined above as we expect no porting, and we expect FY 2011 rollover PWMB demand to be around 150 or less.

What will be the total demand for FY 2012 and how much spillover is required to cross 2007?

So now going back to total demand for FY 2012 as calculated above up to 15 August 2007 and adding demand for PWMBs up to cut-off at that time (4,151- 2,803 = 1,351) assuming dates around 01 June 2007), porting and rollover PWMBs and removing annual limit, (5600) total demand required to cross PD July 2007 (see large font numbers above)

8,000 +1,351 + 3,288 + 150 – 5,600 = 7,189

Total demand of 7,189 will be enough to keep DOS from worrying about taking any new inventory until April 2012. Once year will progress into early Q3, just like this year DOS may start looking into half yearly projected demand for EB1 and EB2-ROW. If at this point, annual visa limit for the EB2-IC (or any of the country) is exhausted due to above stated demand, DOS will start looking into using any available unused visa numbers. Although, DOS/USCIS are constrained to use only 30% of these numbers in first three quarters (but they made exception this year), this move would totally depend upon number of visas available.

If DOS feel there is more than 7189 unused visa numbers that they can expect based on past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements (quoted from our previous article), they will plan on taking extra inventory to make I-485 cases documentarily qualified for rest of the fiscal year.  Usually past trend has been around 3000 visa numbers each month for EB2-IC. 

So if expected spillover from half-yearly unused number is 10,000, they will try to intake for 18,000 or less, thus EB2-IC movement will be based on 18,000 – 7,189 = 10,811, thus crossing only 4-5 months from July 2007 at most at first trial and error. If after this movement, in case DOS would see change in demand pattern then they can try to retrogress dates or progress dates in July 2012 (Q4). Next fiscal year ,spillovers can either be used on a quarterly basis or we can expect some big movement in April 2012 and then second recalibration in July 2012.

If first trial and error would cause dates to move until PD December 2007 in early Q3 of FY2012; based on our estimation it will bring 11,664 EB2-I applications; 2,109 more EB2-C application; and  2803 new PWMBs post 01 June 2007 that were not considered above. These EB2-IC numbers comes from PERM data after applying I-140 conversion factor of 78%. After applying this, if we consider most optimistically due to economic recession or other unforeseen reason only 75% are eligible to pursue this anymore, total demand from Aug 2007 until December 2007 becomes  – (0.75 x (11664+2109)) +2803 = 11912 + 2803 = 14715.

Based on above 18,000 spillovers, 10,811 left after July 2007 would only take EB2-India and China to end of November 2007, and dates could retrogress from December 2007 in July 2012 . If we expect next year’s spillover will be same as this FY 2011 (very unlikely), and we will receive 25000 unused visa numbers, EB2-IC in FY 2012 will end up around January 2008. In reality dates can be anywhere between December 2007 to January 2008 for FY 2012.

It should be noted in above scenario I-140 to I-485 conversion is assumed 75% and PWMBs are assumed 50% eligible.

Now final question is if dates will retrogress or move forward after first huge movement in early Q3 for next fiscal year?

We are really hoping that DOS/USCIS should use quarterly spillover than half yearly spillover for next fiscal year. But Mr. Oppenheim being conservative in nature will move dates only in early Q3 around April 2012 and then recalibrate in July 2012. Dates retrogressing or moving forward will totally depend upon EB1 and EB2-ROW demand.

Do we expect retrogression in Q1 for EB2-I?

No, we do not expect retrogression for EB2-I in Q1 FY 2012. In case if that will happen, it will not be more than a month. Chances are very less.  

August 2011 Visa Bulletin and Estimation for September 2011

August 2011 Visa Bulletin was released  yesterday 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. EB-2 India-China advanced to 15th April 2007. EB1, EB4 and EB5 are still current. Some movement for Family-Based categories overall.

Family-Based

• Family 1st – FB1 remains unchanged across all regions at May 1, 2004 for ROW, China and India, at March 8, 1993 for Mexico and at April 15, 1996 for Philippines.
• Family 2A –FB2A moves forward by four (4) months to July 22, 2008 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by four and a half (4.5) months to June 1, 2008.
• Family 2B – FB2B ROW, China and India remains unchanged at July 1, 2003.  FB2B Mexico moves forward by only one (1) week to October 1, 1992.  FB2B Philippines moves forward by two (2) months to December 1, 2000..
• Family 3rd – most countries moved to August 2001; Philippines  to November 1992; Mexico retrogressed to April 1992.
• Family 4th – most countries moved to April 2000; Philippines stalled at 15 May 1988; Mexico stalled at March 1996.

Employment-Based

• EB-1 remains current across the board.
• EB-2 ROW (Rest of World), Mexico and Philippines remain current while EB-2 China and EB-2 India both move forward by almost five (5) weeks to April 15, 2007.
• EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to November 1 , 2005, EB-3 China  moves forward by only one (1) week to July 8, 2004, while EB-3 India  moves forward by one (1) month to June 1, 2002.  EB-3 Mexico moves forward by over five (5) months to November 1, 2005.
• The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by over five (5) months to May 1, 2005 for ROW, Mexico and Philippines.  It moves forward by one  (1) month to June 1, 2002 for India .
• Employment 4th – still current in all categories
• Employment 5th – still current in all categories

VISA AVAILABILITY Notes from August Visa Bulletin

Family-sponsored: Heavy applicant demand for numbers in the Family First preference could require retrogression of some of the September Family First preference cut-off dates. This action may be necessary to keep visa issuances within the respective annual preference numerical limits. If this were to occur they could be expected to return to the previous cut-off date for October, the first month of the new fiscal year.

Employment-based: No Notes !!!!


Determination of annual limit for this fiscal year
 
The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Sections 201(c) and (d) of the INA, on an annual basis. These calculations are based in part on data provided by U.S. Citizen and Immigration Services (USCIS) regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year. Without this information, it is impossible to make an official determination of the annual limits. To avoid delays in processing while waiting for the CIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA. On June 9th, USCIS provided the required data to VO. (Also hints why no demand data was released, since complete data from CIS was received on June 9th and July bulletin was released on June 8th.)

The Department of State has determined the Family and Employment preference numerical limits for FY-2011 in accordance with the terms of Section 201 of the INA. These numerical limitations for FY-2011 are as follows:

Worldwide Family-Sponsored preference limit: 226,000
Worldwide Employment-Based preference limit: 140,000

Under INA Section 202(a), the per-country limit is fixed at 7% of the family and employment annual limits. For FY-2011 the per-country limit is 25,620. The dependent area annual limit is 2%, or 7,320.

Our Analysis on EB Category after August Visa Bulletin Release

EB3-ROW-M-P - EB3 ROW moved by three weeks to November 01, 2005. As seen with last few months, EB3-ROW only used 1500 visas from the visible demand. EB3-Mexico has utilized 5085 visa numbers for this year and has reached same level as EB3-ROW-P. Going forward EB3-ROW-M-P will move together. Since EB-3 category will not receive any spillover, we expect EB3-M-P to move by 4 weeks to 01 December 2005 for this fiscal year. This movement is based on at least 3188  (ROW-2584 +  M-304 + P-300 ) available visa numbers for EB3-ROW-M-P together. Please note, since each of these countries shares sames cut-off date, going forward for next month at least, they will share same cut-off date.

EB3-India - EB3 India moved one month due to decrease in demand due to porting case. Decrease in demand was 500. This along with monthly limit of 233, allowed total movement of 733 (Inventory upto May - Inventory upto April = 2710-2050). Even if there is no further reduction in demand due to porting, we still expect EB3-India to reach 15th June 2002 for this fiscal year just using 233 number of visas.


EB3-China - EB3-China may only move by a week or two for the coming bulletin. It is difficult to gauge movement for EB3-China due to high volume of invisible CP demand.

EB2-India  &  China - We believe EB2 India and China advanced to 15 April 2007 by utilizing at least 2580 additional unused visa numbers from EB1, EB2-ROW and EB5.

Number of applicants from 08March07 to 15April07 

[26469 + (28498-26469)/2] - [24383 + (26469 – 24383)/4 ]

= 27484 – 24904

= 2580

Till date visas used for this movement

= 22,875 (used upto 08Mar07)  + 5,600 (annual quota) + 2,580 (used in this bulletin)

= 31,055

At this point of time we would like to revisit our potential spillover source for the current fiscal year. We know that EB1 was suppose to give us 12,000 unused visa. It was never clear to us whether it was  a half-yearly or full-yearly projected numbers. After June 2011 released inventory, EB2-ROW was projected to have demand around 26,600 - 28,600 annual, yielding around 6000-8000 unused visa numbers. As per recent released EB5 visa usage number, it was quoted that EB5 demand can be as high as 4,260, thus yielding only 9,400 4230 = 5170 unused visa numbers. So putting these together with 5,600 annual quota for EB2-IC, available visas for EB2-IC becomes

EB1 + EB2-ROW + EB5 + EB2-IC annual quota

= 12000 + 8000 + 5170 +5600

= 30,770

Now from this, all we can conclude is  for EB1, 12K was a projected demand for half year, but  real demand did not convert into 24K. On average, we were hoping to get more 6K from EB1.  But  looking at the current movement, numbers expected now can be anywhere from 3K-6K. Of these expected EB1 numbers, we have already used 500 (31,055 - 30,770).

EB5 usage has been  a very big disappointment (or tough one to digest) for this year ; instead of yielding 7000 unused visa, it would only yield(ed) 5170 visas.

Taking EB1 and EB5 demand into account, worst case movement for September bulletin will be based on use of 2,500 unused visa numbers while best case could be around the use of 5,500 unused visa numbers.

Once date will reach July 2007, new cases, PWMBs and some porting will slow down the movement for Q1 and early Q2. Like this year, we can expect significant movement of priority dates in late Q2 or early Q3 of FY 2012. Movement upto first quarter of 2008 is possible with some retrogression in late Q3. We should remember NVC fee bill is valid upto one year.

Update from www.mitbbs.com

On 18th July there was some update on this site that where they mentioned that someone talked to Mr. Oppenheim through FOIA  or other means (please excuse my translation) and he mentioned that up until now only 121000 visas were used for EB category and at least 19k is still to be used in coming months.

The news on 19K visas available was confirmed in two ways as below

Method A

As per recent data released by USCIS until March 2011 for I-485- Employment Based.

http://www.uscis.gov/USCIS/Resources/Reports/Forms-Data/all-forms-2011-2nd-Qtr.pdf

I-485 Employment Adjustment upto March 2011 approvals are 45,981. At this rate , aprovals for I-485 for full year becomes, 91,962. Adding unused visa numbers used so far, total EB visas used for this year becomes 91962+30000 (SO used so far) = 121,962. So atleast 19K looks is still left from whole fiscal year. This suggest published information on www.mitbbs.com is very authentic and we might have anywhere from 12k-19k total EB visas avaiable for EB category for September.No CP demand included.


Method B

As per data that was released by USCIS day before yesterday -http://www.uscis.gov/USCIS/Resources/Reports/Application-for-Benefits/applications-for-benefits-2011-may.pdf , it suggests total I-485 application to adjust status received until May 2011 are 47,721.

Based on previously released USCIS Approval/Receipt information until March 2011;

I-485 Approved were – 45,981
I-485 Received were – 36,492
Approval/Receipt ratio – 1.26

Assuming same ratio for this newly released data until May 2011 – Approvals can be near – 1.26 x 47,721 = 60,128.This is for 8 months. 

For full year FY2011 – it becomes 12 x 60,128/8 = 90,192.

Again adding spillover used so far, total consumption becomes = 90,192 + 30,000 = 120,192

So visas available for September bulletin, again becomes 140,000 – 120,192 ~ 19K.

Other way to validate 19K news from www.mitbbs.com

Note - It does not include CP demand.

Out of these 19K how much can we expect for EB2-IC?

In above calculations we have not included any CP demand in this. CP demand can be anywhere from 5%-15%. Taking 5%, CP demand will make these 121,000 used EB visa number for FY 2011 until now to 127,000 visas used for EB category after including AOS + CP demand.

Then we should also remember that as per released USCIS data, I-140 stats until March 2011 suggests that for 42,096 receipts, there were only 30,820 approvals. So even if we assume that this difference was constantly maintained for entire year, there are still chances some of these 12000 would contain EB2-ROWs. Some of these remaining visa numbers from 19K will be used for such cases when they will be approved and become documentarily qualified. Even if 10% of these are EB2-ROW, we can have 1200 demand from EB2-ROW. Then addition to this we also have usual monthly demand for EB2-ROW, which can be anywhere from 500 -1500.

We do not know anything about EB1 demand. At this point when USCIS processing time has reduced to 4 months, we can see some of these EB1s can get attention. These EB1 approvals will take some visa numbers. I think in month of August, we can see many EB1 approvals as movement for EB2-IC is only 5 weeks for August bulletin. In addition with reduced backlog, some good numbers of EB1 approvals are expected in August.

In general EB3 demand for a month can be anywhere from 2400 + 4(233) = 3332.

So now if we will consider all these aspects, what EB2-IC can expect is

= 19000 - (CP + EB2-ROW(due to I-140) + regular EB2-ROW + EB1 + EB3) demand

= 19000 - (6000 + 1200 + 1000 + 1000 + 3332) = 6468

Thus numbers available for EB2-IC can be anywhere from 3500 - 8000. So movement can be anywhere from 1 June 2007 - 15 August 2007. It all depends upon demand for last month and we have no basis to come up with exact numbers.

I have not considered EB4 and EB5, which can take few 20-50 numbers here and there.Other than EB4-EB5, there are some PWMBs and dependents who has filed until July visa bulletin, who can become documentarily qualified by September 30.

EB2-IC September 2011 Priority Date Movement

P.S. - Whenever I have been conservative, we have seen great movement for EB2-IC.. I hope it works out like that this time as well.

Demand Data used for August 2011 VIsa Bulletin

 In order to capture this on the website, we are just posting the Demand Data released for August 2011 Vssa Bulletin in here. Please see cumulative difference in Demand Data for June and August 2011 visa bulletin below. It can give us difference in visa utilization for last two months.

Capturing previous Notes:

• EB3 category for ROW/M/P will reach as predicted.

• EB2 category demand is exactly that would be if you subtract difference of sum for inventory from January 2011 upto March and July 2007. So far spillover used is 22875 excluding 5600 annual quota. Further movement expected is for 10-12 k unused visa numbers. 

• For EB2- IC demand data show CP cases post 2007. Numbers are only few hundred to account for. Do not know if it is still worthwhile to make major movement and overwhelm USCIS for PD beyond July 2007 unless strategy is to get some inventory for next year.

• EB3-I demand post PD 2003 reduced to account for already ported cases. Point is USCIS looking into correct demand for EB3-I as if some chance of spillover to this category. I always thought spillover if available should go to EB3-ROW. But this is first time DOS will run into this.

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I-140 and I-485 Approval Rate and Updated GC Calculator

Here is the summarized information on annual I-140 and I-485 percentage approval rate for different service centers. 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%'.

I-140 and I-485 Approval Rate for diffferent Service Centers



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Click Here to Check Updated Green Card Calculator

 

Source - http://www.immigrationwatch.com/uscis-processing-statistics.html

Obtaining Green Card as Registered Nurse (RN)

With certain limited exceptions detailed below, petitioning for a foreign-born registered nurse (“RN”) to work in the United States involves sponsoring her for permanent residence.It currently takes  long time to immigrate a registered nurse to the U.S., more if the RN was born in Philippines, India or China.

Applying for the Registered Nurse Green Card:

• The Registered Nurse Green Card application process consists of filing the I-140 and I-485 petitions.
• The I-140 petition can be prepared and filed immediately.
• The I-485 petition can only be filed when the priority date is current.
• It is hoped that Congress will allocate additional visas or separate quota to make the priority date for RN’s current but bill is still pending in house.

What Regulations?

• The Department of Labor (DOL) maintains a schedule of occupations in its regulations for which the individual permanent labor certification procedure is not required.
• The schedule of precertified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10.
• Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to DOL for a labor certification.
• The position of Professional Nurses is included on Schedule A.

Who Qualifies?

This category consists of registered nurses only. A licensed practical nurse is not considered a Professional Nurse under this category.

The Registered Nurse must possess:

Generally, if a RN is in the United States, the nurse will be able to start working for the employer more expeditiously than if she resides abroad.

1. The RN is required to present to the CIS many of the same documents as stated later in this article. However, since she is in the U.S., she may take the RN licensing examination (officially known as the National Council Licensure Examination for Registered Nurses or the “NCLEX-RN”) in any state. The NCLEX-RN is administered by the National Council of State Boards of Nursing. For more information regarding the exam, see http://www.ncsbn.org

2. The employer must submit an immigrant visa petition to the appropriate CIS Service Center on behalf of the nurse. In order for the visa petition to be approved, the RN must have passed either the CGFNS exam or the NCLEX exam, or be in possession of a “full and unrestricted license” as a registered nurse in the state of intended employment.

Simultaneously with the submission of the visa petition, the RN and her accompanying family members may apply for adjustment of status to permanent residence, for work permits, and in most cases, for travel permits. A nurse need not be in possession of a VisaScreen certificate in order to apply for permanent residence. However, she cannot obtain permanent residence without being in possession of a VisaScreen certificate

If the RN resides abroad, the following steps must be completed before the nurse may be employed in the U.S.:

1. The RN must be in possession of:

a. A diploma from a nursing school in her country;

b. An RN license in her country; and

c. A full and unrestricted license to practice professional nursing in the state of intended employment, or a certification issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS), or evidence that she has passed the NCLEX-RN licensing examination but cannot obtain a license because she lacks a social security number.

Although some states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination, the number of such states is on the decline. This is because, it now possible to take the NCLEX abroad.

The examination is offered in Australia (Sydney), Canada (Montreal, Toronto and Vancouver), Great Britain (London), Hong Kong, India (Bangalore, Chennai, Hyderabad, Mumbai and New Delhi), Japan (Chiyoda-ku and Yokohama), Korea (Seoul), Germany (Frankfurt), Mexico (Mexico City), Philippines (Manila) and Taiwan (Taipei). In addition, RNs may take the NCLEX in Guam, Puerto Rico and Saipan.

2. RNs together with physical therapists are listed as shortage, or “Schedule A”, occupations in regulations (20 C.F.R. §656.22) issued by the Department of Labor. An employer who wishes to immigrate an RN is exempt from having to submit a PERM application to the Department of Labor.

Application Process if the Nurse is Outside the U.S.:

• The Employer files the Form I-140 and ETA 9089 along with the required supporting documents with the USCIS.
• Once the USCIS approves the I-140 Petition (3-6 months), the USCIS first sends the I-140 Petition to the National Visa Center (NVC) in Portsmouth, New Hampshire.
• The nurse (or her attorney) receives a “fee bill” asking for all government processing fees to be paid in advance of processing her application and those of her immediate family members. After the fees are paid, the NVC forwards a packet to the nurse or her attorney containing biographical information forms to be completed by her and her family members, and a list of documents, which must be presented at her interview for permanent residence.
• The RN, or her attorney, sends the signed and completed forms and documents to the NVC which then schedules an appointment for an Immigrant Visa for the RN and her family at the U.S. Consulate or Embassy where they will have their interviews for permanent residence.
• At this interview, the nurse must present various documents including the following:

a. Application for Immigrant Visa
b. Police Clearance
c. Birth Certificate
d. Marriage Certificate, if any
e. Divorce or Death Certificate of Spouse, if any
f. Valid Passport
g. Medical Examination
h. USCIS Photographs
i. Recent job offer letter (or employment contract)
j. Financial information regarding employer
k. Government filing fee
l. VisaScreen Certificate

The VisaScreen Certificate requirement was imposed by §343, a last-minute amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It added “uncertified health-care workers” to the list of persons who are inadmissible to the U.S. See §212(a)(5)(C), INA. A nurse need not be in possession of a VisaScreen certificate in order to apply for permanent residence. However, she cannot obtain permanent residence without being in possession of a VisaScreen certificate

A VisaScreen Certificate is issued only after the RN has demonstrated that:

• her education, license and training in her country are equivalent to education, licensure and training in the U.S., and,
• her level of competence in oral and written English are appropriate to practice professional nursing in the U.S.

The USCIS regulations provide that the only organization authorized to issue VisaScreen certificates to RNs is the Commission on Graduates of Foreign Nursing Schools (CGFNS).

In addition, unless the nurse was educated in an English-speaking country (U.S., Australia, New Zealand, Ireland, United Kingdom or Canada – all provinces except Quebec), she must achieve a certain score on tests in written and spoken English administered by TOEFL (Test Of English As A Foreign Language) or MELAB (Michigan English Language Assessment Battery) in order to qualify for a VisaScreen certificate.

Passing scores for RNs on English exams are as follows:

• IELTS: Academic Module or the General Training Module 6.5, Overall Band Score, 7.0 Speaking
• TOEFL: Paper-Based 540; TOEFL Computer-Based 207; Test of Written English (TWE) 4.0; Test of Spoken English (TSE) 50.
• TOEIC: 725; plus TWE: 4.0 and TSE: 50
• Passing scores for the MELAB were as follows: Final Score 79+; Oral Interview 3+.

Source - www.usavisanow.com