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

I-485 Case Tracker for Priority Dates those are Current

New "I-485 Case Tracker ONLY for Priority Dates those are Current" is currently released, and open for comments and suggestion. Please use I-485 Case Application Tracker for your case ONLY if your Priority Date has recently became 'Current' in previous or current visa bulletin. Please note that your "Name" cannot have duplicate entries. Data once added will allow editing only few fields.

Goal of this tracker to track approval time after getting 'current' and efforts individual has to take before receiving approvals.

As of now tracker will take into account

Name ▼

Visa Bulletin Month ▼

Visa Category ▼

Chargeability ▼

Priority Date ▼

AOS/CP ▼

I-485 Case Status ▼

Case Type ▼

I-485 Approval Date ▼

Comments ▼

Rep Contacted ▼

Rep Contact Date ▼

SR Opened ▼

SR Open Date ▼

CP Interview Notice Date ▼

EAD/AP Received Date ▼

Biometrics Notice Receiving Date ▼

If you have more suggestions please leave comments.

Check I-485 Tracker here

August 2011 Visa Bulletin Predictions - EB Category

Here is the prediction for August 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations and as long as EB2-India and China will continue to receive spillover as per INA Section 202(a)(5).

August 2011 Visa Bulletin Predictions 

To access password restricted area, please send email to usnonimmigrants@gmail.com with Subject "August 2011 Visa Bulletin Predictions" (without quotes). Each email will receive unique decryption key (or password) to check the post. Please refrain from posting predictions anywhere on other websites and other posts. These predictions are only for our readers who use these for their guidelines and to plan their life in US. These predictions will be updated as month will progress and better information is released.

Note : In EB2-IC predictions, please read EB3-ROW as EB2-ROW.

Click Here to Enter Password and View Predictions

EB2 - IC Poll- People Who Filed Without Dependents (PFWD) during July 2007 fiasco.

In order to calculate the amount of retrogression that will happen after September 2011 for EB2 India and China (in case dates will reach beyond July 2007), we would like to start collecting some information on number of people who did not filed for dependents during July Fiasco. This data in addition to People Who Missed the Boat (PWMB) during July 2007 will exclusively help us to get some information on retrogression post September 2011. If we do not see cut-off dates crossing July 2007 for this fiscal year then this data will anyways be helpful for next years spillover calculation. We would really appreciate your corporation in accumulating this data. We are hoping such individuals will be less in numbers but we want to account them for furthur calculations.

Please select your Priority Date below if you have not filed for dependents during July 2007 fiasco

Please select your family size (excluding you) below if you have not filed for dependents during July 2007 fiasco

PERM Processing Times as of May 31, 2011

DOL recently released current PERM processing times. There is great reduction in audit cases. Compared to last month audit case processing time has moved from December 2009. to August 2010. Improvement by leaps and bounds. Huge reduction in inventory. DOL has started processing cases from April 2011. On average expect wait-time of 60 days for PERM approval. We expect that audit case processing times will improve until January 2011 by next month and then will keep pace with regular approvals with audit cases taking on average just 6 months.

PERM Processing Times as of May 31, 2011

• Analyst Reviews: April 2011


• Audits: July-August 2010


• Standard Appeals: Octoberer 2008


• Government Error Appeals: Current

July 2011 Visa Bulletin and EB Category Movement Analysis

July 2011 Visa Bulletin was released today. 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 08 March 2007. EB1, EB4 and EB5 are still current. Good movement for Family-Based categories overall.

Family-Based

Family 1st – FB1 ROW, China and India remain unchanged at May 1, 2004. FB1 Mexico moves forward by one (1) week to March 8, 1993. FB1 Philippines moves forward by two (2 ) months to April 15, 1996.

Family 2A – FB2A moves forward by seven (7) months to

March 22, 2008 for ROW, China, India, and Philippines. FB2A Mexico moves forward by seven (7) months to February 15, 2008.

Family 2B – FB2B ROW, China and India remain (a

gain) unchanged at April 15, 2003. FB2B Mexico moves forward by three (3) weeks to August 22, 1992. FB2B Philippines moves forward by three (3) months to June 8, 2000.

Family 3rd – most countries advanced to July 2003; Philippines moves to March 1992; Mexico stayed at 15 November 1992.

Family 4th – most countries stalled at January or March 2000; Philippines advanced to 1 5May 1988; Mexico advanced to March 1996.

Employment-Based

Employment 1st – still current in all categories

Employment 2nd – EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 India-China see significant movement to 08 March 2007.

Employment 3rd – EB-3 ROW and EB-3 Philippines move forward by three (3) weeks to October 8, 2005, EB-3 China moves forward by six (6) weeks to July 1, 2004, while EB-3 India moves forward by one (1) week to May 1, 2002. EB-3 Mexico moves forward by seven (7) months to July 01, 2005.

Employment 3rd (Others)- The “other worker” category remains unchanged at April 22, 2003 for China. It moves forward by one year two (2) weeks to November 22, 2004 for ROW, Mexico and Philippines. It moves forward by one (1) week to May 01, 2002 for India

Employment 4th – still current in all categories

Employment 5th – still current in all categories


VISA AVAILABILITY Notes from June Visa Bulletin

Family-sponsored: For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15FEB08. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15FEB08 and earlier than 22MAR08. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

Employment-based: No Notes !!!!

Our Analysis on EB Category after July Visa Bulletin Release

EB3-ROW-M-P - EB3 ROW moved by three weeks to October 08, 2005. As seen with last few months, EB3-ROW only used 1400 visas from the visible demand. At this pace EB3-ROW can ONLY reach mid November by September 2011 visa bulletin. Either lot of the annual visa consumption is going into approving monthly cases returned from Local Offices to USCIS or these visas are utilized by EB3-Mexico. So far, for the current year as per I-485 inventory, EB3-Mexico has utilized 4010 visa numbers. These excess visa utilization suggests that either lot of old I-485 cases were denied for Mexico or DOS is trying to use as much visa numbers for EB3-Mexico to bring it to current EB3-ROW-P, PD of 08 October 2005, This way they do not have to worry about 7% utilization of annual cap that is required to maintain status of retrogressed countries going forward for next fiscal year. Other school of thought suggests that EB3-Mexico can also become 'U' for last two months of the quarter. EB3-P will have to move with EB3-ROW, no matter what for rest of the year.

EB2-India & China - EB2 India and China advanced to 08 March 2007 by utilizing at least 10,563 additional unused visa numbers from EB1, EB2-ROW and EB5. It is expected that at this pace dates can reach July 2007 in August visa bulletin. In September bulletin either dates will become current or will move into first quarter of 2008. If available visa are less than 24K-11k(used for this bulletin) = 14K for remaining two months, then DOS can decide to stay put at 01 Aug 07. PWMBs will be enough to consume annual visa numbers for rest of the next fiscal year (not spillover). Chances for latter looks less as DOS would like to build some inventory for themselves to have fair cut-off date projection for next year spillover season. Once again, everyone keep your documents ready. Next two months could be full of roller coaster ride. It all depends if B's would Stanley Cup. (LOL ..just kidding). God Bless!!!

Updated Green Card Calculator & Other Notes

As per recent data released by USCIS on May 26th, 2011 on EB I-485 inventory, green card calculator is updated. Beyond this, calculations are extended to predict how many years will it take an individual to receive a green card from current date (as per GMT). In addition to other categories it will aslo calculate number for applicants for EW (Others) category. Due to complication in calculation it cannot estimate wait time as of now.

Data beyond July 2007

Data beyond July 2007 is segregated from PERM data with respective to 'Priority Date'. To segregate EB2 and EB3, PWD minimum salary was used as a basis instead of assumption of 50:50. Ratio 50:50 do not holds true for many countries. Please see table below, which outlines PERM distribution for EB2 and EB3 for different countries.

Spillover Estimation - System will recommend spillover that we expect to receive in coming years for each country and category .
EB2-India & China - PERM distribution for different priority date in EB2 - India and China was calculated. This distribution will control how spillover will be distributed among EB2-IC as dates will progress for different Priority Dates. System would try to average the Spillover among EB2-India and China in such a way that number of years required to reach similar PDs are as close as possible. For each fiscal year, system assumes following spillover. In general distribution of EB2-IC PERM Ratio for different PD year is as shown below. In general, waiting time for Indian nationals in EB2 and EB3 category looks terrible. Since density of applicants per month in EB2-India is so high, that in long run EB2-China will not receive majority of spillover (couple hundred or few thousands). Since EB2 will not be cleared for atleast next 5-6 years, spillover expeccted to EB3 category is minimum. EB3-India will get some indirect- spillover each year due to EB3 to EB2 upgrades or porting which will cause queue to clear faster than anticipated. Individuals with PD close to 2004 -2006 will see ample benefit of this every year. Apparently, if EB2-I will stop receiving spillover or receive minimum spillover in coming years, wait time for EB3-India and EB2-India will end up same. If you will note EB3-India has only 102k estimated demand vs. 165k for EB2-India for PD - March 2011. This whole ordeal is very depressing and visa recapture bill is only hope for EB community.

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

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

For EB2-India and China, PWMB is added to the following inventory assuming PD in coming visa bulletin will move in increments as stated in table below.

It is assumed that 7% of the total annual EB Visa Numbers (140,000) are allocated to each of the four retrogressed countries while the remaining 72% visa numbers are available to the Rest of the World. Visa numbers allotment for EB4 and EB5 are considered separately.

Please click Here to check Updated Green Card Calculator

June 2011 I-485 Inventory and Notes on EB2 & EB3 Category

Edited - May, 30 - 2011 for additional information and editorial corrections.

Thank you everyone for posting the link to newly released USCIS I-485 Pending Inventory as of June 2011. I have finished analyzing inventory up to some extent. We are glad it was released now since I am continuously working on updating green card calculator. So far until this time some of the highlights of the June 2011 inventory is listed below.

EB2-ROW-M-P
PERM approvals for EB2-ROW-M-P are not converting to I-485 inventory yet. As per released data, demand for EB1 and EB2-ROW-M-P category looks low. EB2-ROW-M-P demand is anywhere from 26,600 to 28,600. EB2-ROW-M-P demand can pick up with more I-140 approvals going forward. Please note AOS demand for concurrently filed I-485/I-140 is not considered in the demand data until approval of I-140. EB2-ROW-M-P will continue to stay current for rest of the year.

EB3-ROW
Significant demand for EB3-ROW is seen due to return of many pre-adjudicated cases from local offices to USCIS processing centers (Please see below a comment made by an astute reader). EB3-ROW demand for PDs beyond August 2005 until December 2005 has increased by 2,500 when compared against January inventory. From January until May 2011, pending inventory until 01 January 2006 has only reduced by 3,500. EB3-ROW will not cross 2005 until December 2011. Total Demand until December 2005 is around 17k.

"You said: "Significant demand for EB3-ROW is coming from Consulates abroad."

I don't think that can be correct, since the USCIS Inventory does not include those cases.

I would conclude that they are pre-adjudicated cases with a not yet Current PD, returned by the Local Offices to TSC following a successful interview.

They seem mainly concentrated at the end of 2005, so that implies there are a lot more cases with later PDs in 2006 and 2007 still at the LO awaiting interviews."

EB3-India
Total inventory for EB3-India until May 2006 has reduced from 47,087 to 44,682, indicating EB3 to EB2 porting of ONLY 2,400 from January until May 2011. Starting 01 June 2011, USCIS will see post PD June 2006 upgrade demand. We expect this demand to be around another 1500 maximum. Total upgrade demand from EB3 to EB2 for FY 2011 should not be more than 4,500.

EB3-China-Mexico-Philippines
These categories are progressing as expected. We expect them to move as per predictions. Please note EB3-P will be moving with EB3-ROW for rest of the year.

Please note - This analysis is solely based on released inventory.

EB2-India & China

• EB2-ROW-M-P - FY 2011 worst-case (taking into account Jan and June inventory) demand expected is around - 28,600 - On Average Spillover expected is - 6,000
• EB1- FY 2011 worst case demand expected- 21,506 - On Average Spillover expected is - 19k-12k = 7,000
• EB5 - FY 2011 worst case demand expected - 1,880 - On Average Spillover expected is - 8,000
• Porting does not look more than 2,800 until this inventory. Please assume 1,500 maximum spillover for PD post July 2006.
  

Total Spillover expected for rest of the year
6000 + 7000 + 8000 - 1500 = 19,500 (enough to just reach 15 July 2007)

What to expect?

Anything more than 23,000 spillover means either EB2-IC will get current for small time or at least reach late 2007 as long as NVC has enough pipeline to support the demand . If NVC does not have enough demand then some portion of these visas will be utilized to approve pre-adjudicated cases from EB3-ROW. These numbers have to be used by September 2011 in order to be count these visas for current fiscal year. Again, please note this is solely based on inventory and this can change with how PERM/I-140 approvals will convert into I-485 inventory for EB2-ROW or other EB3 to EB2 Porting demand.

Recommended Action for EB2-IC (Chances are 50%)
Please make sure that the required documents for I-485 filings is upto date for an individual and ready for small window that may open in few months.

Most importantly prepare for long lead items like your birth certificate et al so that they are in place with right name and place of birth.If not then have your notarized affidavits ready from your home country.

Please note though chances are small but if we have more 23,000 unused visa spillover then DOS has to move dates to get unused visa numbers utilized before September 2011. In case large number of unused visa numbers are available, USCIS will not have the capacity to process the entire load, and thus load have to be shared among Consular Posts abroad by advancing dates more than required in August - September 2011 and retrogressing it in October 2011.

If by any chance this demand is not observed by end of this fiscal year, EB2-IC is still expected to move into late 2007 sooner or later in FY 2012.

EB3 Category - People Who Missed the Boat (PWMB)

In lieu of updating our green calculator we have completed our analysis on "People Who Missed the Boat" (PWMB) during July 2007 fiasco for EB3 category. It may be too early to see effect of these in current visa bulletin but as dates will move into 2007 these numbers can be significant. On average if your PD is after July 2007 assume 6 more months wait for EB3-ROW, Mexico and China , 3 months for EB3-Philippines and atleast a year for EB3-India. PWMB for EB3-ROW and Philippines is calculated from 01 March 2006, latest PD that was currentafter July 2007, whereas for other countires it is calculated from first available petition.

PWMB for EB3-India and China were published previously but are added here again for reference. PWMB for EB3 category for most countries means they will consume significant visa when PD will reach year 2007.

People Who Missed the Boat (PWMB)
Per family size 2.25 while considering dependents

July 2011 Visa Bulletin Predictions - EB Category

Here is the prediction for July 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations and as long as EB2-India and China will continue to receive spillover as per INA Section 202(a)(5).

Predictions

• EB3- China could advance to 15 June 2004


• EB3-Philippines could advance to 01 October 2005.
  


• EB3-Mexico could advance to 22 March 2005.


• EB3-ROW could advance to 01 October 2005. (Reason for update)
  

• EB2 will be current for ROW, Mexico and Philippines.


• EB3-India could advance to 01 May 2002.

• EB2-India and EB2-China could see movement atleast 01JAN07
  

USCIS Proposes Significant Enhancements to EB-5 Visa

USCIS Proposes Significant Enhancements to EB-5 Visa

released May 19, 2011

Actions Will Streamline Program Designed to Create Jobs

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today proposed significant enhancements to the administration of the USCIS Immigrant Investor Program, commonly referred to as the EB-5 Program—transforming the intake and review process for immigrant investors as part of the Obama administration’s continued commitment to improve the legal immigration system and meet our economic and national security needs for the 21st century.

The EB-5 Program makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. EB-5 investors may petition independently or as part of a USCIS-designated Regional Center.

“Congress created the EB-5 Program in 1990 to attract investors and entrepreneurs from around the globe to create jobs in America,” said USCIS Director Alejandro Mayorkas. “We are dedicated to enhancing this program to ensure that it achieves that goal to the fullest extent possible.”

USCIS is proposing three fundamental changes to the way it processes EB-5 Regional Center filings. First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal will be online until June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Operational Proposals for Comment

USCIS seeks your input on the operational proposal listed below. After review and consideration of the received comments, USCIS will determine what, if any, changes it should make to this operational proposal, or if other agency action is required.

• Proposed Changes to USCIS's Processing of EB-5 Cases (Final date for comments: June 17, 2011)

Comment Process: Please e-mail all comments to opefeedback@uscis.dhs.gov. Please include the following to make your comments clear:

• State the title of the relevant proposal in the subject line of your message;
• Refer to a specific portion of the proposal;
• Explain the reason for any recommended change; and
• Include data, information, or authority that supports the recommendation.

You have 20 days to review and submit comments on the proposal. USCIS may distribute any comments received (including any personal information and contact information) on its public website or to those who request copies. By providing comments, you consent to their use and consideration by USCIS, and you acknowledge that your comments may become public. USCIS cannot guarantee that it will acknowledge or respond to any comments submitted.

See the Feedback Updates for the status of all reviewed memoranda/ proposals and links to published memoranda/ proposals.

Background and Additional Legal Information: USCIS is not required to solicit public comment on operational proposals under the Administrative Procedure Act. This informal comment process does not replace any statutory or other legal requirement for public comment on agency action.

Source

Understanding Visa Bulletin Cut-Off Date Determination

Role of DOS

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

The Immigrant Visa Control and Reporting Division’s main responsibility is the administration of the complex series of annual numerical limitations on immigrant visas, subdivided by preference category and country, which are set by the INA. Where demand exists, DOS goal is to have the issuance level come as close as possible to 100% of the numbers available each year without exceeding the limits that Congress has established. DOS also want to maintain a steady flow of applications throughout the year to ensure appropriate use of government resources and to provide good customer service to applicants. Over the past years, DOS have a proven record of using over 95 percent of the annual worldwide numerical limit.

Role of USCIS
The Department works closely with United States Citizenship and Immigration Service (USCIS) on data exchange to allow for maximum use of numbers under the annual limits, and in a stable, predictable manner. This is extremely important in the Employment based categories, where USCIS currently uses approximately 90 percent of all available visa numbers. Section 203(g) of the INA directs the Secretary of State to make reasonable estimates of anticipated number use in order to maximize number use under annual limits. When making such estimates it is necessary to take into consideration a number of variables based on the best information which is available when those estimates are being made. Should there be a change which could not be anticipated it can have an impact on number use. This makes the determination of the monthly cut-off date particularly difficult at the end of the fiscal year since there is little if any time to make any necessary adjustments. While DOS always strive to reach 100% goal of the numbers allocated, increasing percentage above 95 percent is difficult given that DOS is statutorily barred from exceeding the annual limits.


DOS working with USCIS, Consulates and Embassies
On any given day, immigrant visas are issued at about 130 embassies and consulates overseas. Adjustments of status (which use the same numbers) are granted at about 90 - 100 domestic USCIS offices. The State Department tracks visa number usage and requests from consular sections around the world and USCIS. On a monthly basis the Visa Office determines the number of visas which can be allocated in each visa category and to each country on a worldwide basis. The process developed for managing the numbers throughout the year requires that numbers are made available by adjusting the cutoff date for each category and each country on a monthly basis. Cutoff dates for all countries except China, India, Mexico and the Philippines are currently the same every month in every category. Because demand for numbers exceeds annual per-country numerical limits for these four countries, they have their own cutoff dates in some categories.

The monthly visa bulletin published by the Department and available on website at www.Travel.State.Gov explains the allocation of visa numbers by dates, the laws and the per country and per category limits.

As stated previously, DOS goal is to come as close as possible to the annual limit without exceeding it. The Immigrant Visa Control and Reporting Division maintains a database containing workload statistics for immigrant visas issued at Foreign Service posts worldwide, and adjustment of status cases at USCIS. DOS authorize numbers for USCIS applications as USCIS request them, usually on a daily basis.

DOS in past has received several inquiries about the allocation of Employment-Based Second Preference visa numbers to India and China. DOS want to make clear that India is not receiving all of the extra numbers. They are also available to China where the applicant’s priority date was earlier than the posted cut-off date and are also available to applicants in any other country with a current priority date and for which the interview is completed and all required clearances received. These numbers are being made available when current indications are that demand from “all other countries” will not be sufficient to utilize all available Employment First and Second preference numbers. Such numbers will be made available, as visa numbers are always provided, in priority date order (the date petition to accord immigrant status was filed with USCIS). India does have a larger number of older petitions pending and therefore is likely to receive a larger number of these visa numbers than China. The Department’s policy of making the extra numbers available in priority date order is mandated by Section 203(e) of the INA. This allocation of numbers based on priority date means that China and India Second preference applicants will be subject to exactly the same cut-off date.

VISA NUMBER Availability and Cut-Off Date Determination for Visa Bulletin

The Department of State is responsible for administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. It is a process that has evolved through the years and will continue to do so as DOS use the best technologies to improve communication with posts, applicants and colleagues at USCIS.

At the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped in three different categories: 1) foreign state chargeability, 2) preference and 3) priority date.

Foreign state chargeability for visa purposes refers to the fact that an immigrant is chargeable to the numerical limitation for the foreign state or dependent area in which the immigrant's place of birth is located. Exceptions are provided for a child (unmarried and under 21 years of age) or spouse accompanying or following to join a principal to prevent the separation of family members or in a foreign state of which neither parent was a native or resident. Alternate chargeability is desirable when the visa cut-off date for the foreign state of a parent or spouse is more advantageous than that of the applicant's foreign state.

Preference is the visa category that can be assigned as established by the Immigration and Nationality Act based on relationships to U.S. citizens or legal permanent residents. Family based immigration falls under two basic categories: unlimited and limited. Preferences established by law for the limited category are:

Family First Preference (F1): Unmarried sons and daughters of U.S. citizens and their minor children, if any.

Family Second Preference (F2): Spouses, minor children and unmarried sons and daughters of lawful permanent residents.

Family Third Preference (F3): Married sons and daughters of U.S. citizens and their spouses and minor children.

Family Fourth Preference (F4): Brothers and sisters of United States citizens and their spouses and minor children provided the U.S. citizen is at least 21 years of age.

Employment-based immigration also includes preferences; all of them are subject to a limitation.

The Priority Date is normally the date on which the petition to accord the applicant immigrant status was filed, normally with U.S. Citizenship and immigration Service.

Visa Bulletin Cut-Off Date Determination
The Department of State Visa Office subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants which have been reported to VO are compared each month with the numbers available for the next regular allotment. The determination of how many numbers are available requires consideration of several of variables, including: 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. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current". For example: If the monthly allocation target is 10,000 and DOS only have 5,000 applicants the category can be "Current”.

Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 10,000 and DOS have 25,000 applicants, then the goal would be to establish a cut-off date so that only 10,000 numbers would be allocated. In this case, the cut-off in the ideal world would be the priority date of the 10,001st applicant.

Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa number. Possible cut-off dates are the 1st, 8th, 15th, and 22nd of any given month, since the Visa Office groups demand for numbers under these dates. (Priority dates of the first through seventh of a month are grouped under the 1st, the eighth through the fourteenth under the 8th, etc.)

The Visa Office attempts to establish the cut-off dates for the following month on or about the 8th of each month. The dates are immediately transmitted to consular posts abroad and the U.S. Citizenship and Immigration Services (USCIS), and also published in the Visa Bulletin and online at the Bureau of Consular Affairs Web site (www.travel.state.gov).

Visa allotments for use during that month are transmitted to consular posts. USCIS requests visa allotments for adjustment of status cases only when all other case processing has been completed.

CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS

Applicants entitled to immigrant status become “documentarily qualified” to apply for an immigrant visa (meaning they have all their documents necessary for a visa interview and, if approved, for issuance) at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.

If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at the Visa Office and an allocation is made as soon as the applicable cut-off date advances beyond the applicant's priority date. There is no need for such applicant to be reported a second time.

Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to the Visa Office in time to be included in the monthly calculation of visa availability. Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach the Visa Office for the monthly allocation cycle, or that information on the request was incomplete or inaccurate (e.g., incorrect priority date).

Allocations to Foreign Service posts outside the regular monthly cycle are possible in emergency or exceptional cases, but only at the request of the office processing the case. Note that should retrogression of a cut-off date be announced, the Visa Office can honor extraordinary requests for additional numbers only if the applicant's priority date is earlier than the retrogressed cut-off date.

Not all numbers allocated are actually used for visa issuance; some are returned to VO and are reincorporated into the pool of numbers available for later allocation during the fiscal year. The rate of return of unused numbers may fluctuate from month to month, just as demand may fluctuate. Lower returns mean fewer numbers available for subsequent reallocation.

Fluctuations can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7% is a cap, which Visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however. A portion of the numbers provided to the Family Second preference category is exempt from this per-country cap.

The American Competitiveness in the Twenty-First Century Act (AC21) removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of a cut-off date which is earlier than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)

H1B FY 2012 Prediction and CAP Count - 18 May 2011

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

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

H1B FY 2012 CAP Count

Predicted Graph for CAP Count based on current trend

Click Image to Enlarge

H1B FY 2012 CAP Count - 05 May 2011

As per recent release by USCIS, regular cap has utilized till date 10,200 visas and Masters quota has utilized 7,300 visas as of 05th My 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 35% of the quota. As of now number of petitions increased from last week is 1,700.

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

2012 DIVERSITY LOTTERY PROGRAM Results Voided

**IMPORTANT NOTICE REGARDING THE 2012 DIVERSITY LOTTERY PROGRAM**

We regret to inform you that, due to a computer programming problem, the results of the 2012 Diversity Lottery that were previously posted on this website have been voided. They were not valid and were posted in error. The results were not valid because they did not represent a fair, random selection of entrants, as required by U.S. law.

If you checked this website during the first week in May and found a notice that you had been selected for further processing or a notice that you had not been selected, that notice has been rescinded and is no longer valid.

A new selection process will be conducted based on the original entries for the 2012 program.

If you submitted a qualified entry from October 5, 2010 to November 3, 2010, your entry remains with us. It will be included in the new selection lottery. Your confirmation number to check results on this website is still valid.

We expect the results of the new selection process to be available on this website on or about July 15, 2011.

We regret any inconvenience this might have caused.

Transcript:

“Hello, my name is David Donahue. As the Deputy Assistant Secretary of State for Visa Services here at the U.S. Department of State, I oversee our visa program.

Every year, the Diversity Visa Lottery generates excitement around the world, as entrants hope to be selected for the chance to apply for an immigrant visa to the United States. Some people have already logged on to our Entry Status Check website to view this year’s selection results. Regrettably, the results that were previously posted on this website are not valid. They were posted in error.

These results are not valid because they did not represent a fair, random selection of entrants as required by U.S. law. Although we received large numbers of entries every day during the 30-day registration period, a computer programming error caused more than 90% of the selectees to come from the first two days of the registration period. The computer error that caused this unfair, non-random result has since been corrected. We sincerely regret any inconvenience or disappointment this problem might have caused.

Because this problem unfairly disadvantaged many Diversity Visa Lottery entrants, we will conduct a new, random selection. The new selection will be based on the original entries. If you submitted a qualified entry in 2010 between October 5 and November 3, you do not need to reapply. Your confirmation number to check results on this website is still valid.

We expect the results of the new selection process to be available on the DV Entry Status Check website on or about July 15, 2011. More information is available on our website:

http://dvlottery.state.gov

Again, we sincerely regret any inconvenience or disappointment this problem might have caused. Thank you.”

Frequently Asked Questions

Q: Why was it necessary to invalidate the names that were selected?

• U.S. law requires that Diversity Immigrant visas be made available through a strictly random process. A computer programming error resulted in a selection that was not truly random.

• Since the computer programming error caused an outcome that was not random, the outcome did not meet the requirements of the law, and would have been unfair to many DV entrants.

Q: Is the 2012 Diversity Visa Program cancelled?

• No. The 2012 program will continue. The computer programming error has been identified and corrected. The Department of State will run a new selection using all the qualified entries (ones received between October 5, 2010 and November 3, 2010) it received for the 2012 program.

Q: Do I have to submit a new application?

• No. You may not submit a new application. We will use all qualified entries received during the October 5 to November 3, 2010 registration period.

Q: Will you open a new entry period?

• New entries will not be accepted.

Q: I checked the Entry Status Check website after May 1 and it said I had been selected. Can I apply for a DV visa?

• Unfortunately results previously posted on this website were not valid because the selection process was not fair or random. We will take the entries of all individuals who sent in their registration during the original October 5 to November 3, 2010 time period and run a new lottery. We regret any inconvenience or disappointment this has caused. We expect new results to be available on this website on or about July 15, 2011.

Q: How can I check the results of the new selection?

• The new results should be available on this website on or about July 15, 2011. The confirmation code you received when you registered is still valid for use on the website.

Q: Was the Department of State hacked? Was my personal information at risk?

• We have no evidence that this problem was caused by any intentional act. No unauthorized party accessed data related to the DV program.

This appears to be solely the result of a computer programming error.

EB2-China & India FY 2011 Movement Based on June Visa Bulletin

June 2011 Visa Bulletin has released, and EB2-India and China finally had a significant movement that was hoped after Mr. Charlie Oppenheim made a statement about atleast 12,000 unused visa numbers available from EB1 category for spillover to EB2 category. EB-2 China moved forward by two and a half (2.5) months to October 15, 2006, while EB-2 India moves forward after last month’s notable 7-week advancement by three and a half (3.5) months to October 15, 2006. In this article we will like to analyze statements in Visa Bulletin and discuss where EB2-IC will stand by end of this fiscal year (September 2011),

Notes from June Visa Bulletin for EB2-IC movement

"As mentioned in the May Visa Bulletin, Section 202(a)(5) of the Immigration and Nationality Act (INA) prescribes rules for the use of potentially “otherwise unused” Employment numbers. During May the India Employment Second preference cut-off date is governing the use of such numbers, because India had reached its Employment Second annual limit."

There is nothing new in this statement. This was previously mentioned in May visa bulletin. EB2 India has reached it's annual limit and has started using yearly spillover or unused visa numbers from EB1.

"Since October there has been heavy demand by applicants "upgrading" their status from Employment Third to Employment Second preference. The rapid forward movement of the India Employment Second preference cut-off date in May had the potential to greatly increase such demand. Therefore, the determination of the June cut-off dates was delayed in order to monitor this demand. At this time the amount of new "upgrade" demand has been minimal; this has allowed the Employment Second preference cut-off date governing the use of the Section 202(a)(5) numbers to advance significantly for June."

As DOS mentioned in their past visa bulletin that they were interested in gauging EB3-EB2 porting demand and were very cautious before they could start using the unused visa numbers to progress EB2-IC dates. They checked demand for upgrade for first 10 days of May before advancing dates. Seriously .... they thought they will know the new porting demand in 10 days when PERM approval rate are at a year low level since past two months, and DOL is looking more to approve audit cases. Other than this, advancing dates only to 01 July 2006 for last bulletin would have not given them any real demand what they were looking for, unless they were worried about porting demand for PDs from 2002 to May 2006.

So my take on the statement "new upgrade demand has been minimal" is that most of the individuals with PDs between 2002 and May 2006 has exhausted their means, and others who are still working on it are stuck in PERM approval queue.

Advancing dates for EB2-IC to '15 October 2006' in June visa bulletin is a good move by DOS to gauge new upgrade demand for PDs in 2006, and at the same time this allows continuous demand for folks with PD pre-May 2006. In doing so DOS has exhausted almost 10,000-12,000 unused visa numbers available from EB1 category.

"The same cut-off date will apply to both China and India Employment Second preference. Note that under INA Section 203(e) all of the “otherwise unused” numbers must be provided strictly in priority date order regardless of the applicant’s chargeability"

As mentioned in our past posts that spillover is used within a category purely based on First In First Out (FIFO) principle regardless of applicant's country of chargeability.

"Cut-off date movement for upcoming months cannot be guaranteed, and because of the variables involved, no assumptions should be made until the dates are formally announced. Should there be a sudden or significant increase in India and China Employment Second preference demand it may be necessary to slow, stop, or retrogress that cut-off date as we approach the end of fiscal year 2011."

We will discuss this in detail below.


What can we expect for EB2-IC for rest of the fiscal year 2011?

Since DOS has completely used the available 10-12k unused visa numbers from the EB1 category this portends that we should expect small or no movement for EB2-IC in July visa bulletin. Any further movement for EB2-IC will only be due to unused visa numbers available from EB5 and EB2-ROW-M-P category.

EB2-ROW-M-P demand (FA)
But recent analysis of EB2-ROW-M-P PERM data for first two quarter suggests that demand for EB2-ROW-M-P for current fiscal year will be around 28,600 + 2,000. If this trend would change, we could see more demand (e.g. few unsuccessful EB1 folks from first quarter of fiscal year trying under EB2-ROW) as we will move towards end of fiscal year and EB2-ROW-M-P could yield no or less visa numbers as spillover. As of now we should expect only 5000 at most from EB2-ROW-M-P demand and as less as 3000.

EB5 demand (FU)
It is difficult to gauge EB5 demand. But if this year will see more demand for EB5 compared to last year, number of visa numbers available could be less. We expect at least 4000- 6000 unused visa numbers from EB5.

EB3 to EB2 Porting demand (PO)
How upgrade demand would shake up in coming months is far beyond calculable. All we can do is predict and assume. In coming months majority of demand could be from folks with PD after May 2006 and some portion could be from those who are currently in PERM queue. These numbers can be anywhere from 2000-2500. These are numbers which will control retrogression or stall of EB2-IC cut-off dates atleast for July visa bulletin.

Now some good news (EB1)
Knowing Mr. Oppenheim he would have never used all it's unused visa number unless he was sure he has enough lying under his sleeves in case EB2-ROW demand surges far beyond it's annual limit for current fiscal year. This suggest that DOS believes that either EB5 demand will yield atleast enough numbers that we predict or EB1 demand has potential to yield more (say atleast more 4000 -6000 visas).

Spillover available for the remaining fiscal year
Minimum = FA (lower bound) + FU (lower bound) +EB1 (lower bound) - PO (higher bound)
= 3000 + 4000 + 4000 - 2500 = 8500

Maximum = FA (upper bound) + FU (upper bound) +EB1 (upper bound) - PO (lower bound)
= 5000 + 6000 + 6000 - 2000 = 15000


Summarizing above headers
EB2-IC movement has potential to progress slowly or stall in July visa bulletin due to porting numbers and any increase in demand beyond expected can cause EB2-IC to retrogress in July visa bulletin. Expected movement for EB2-IC in coming visa bulletins is listed below. If this is it from EB1 category and we will not receive any more unused visas then EB2-IC will not cross December 2006.