Latest News, Blogs, and Other Thoughts on Immigration

A few minutes ago USCIS announced that as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.

The Department of State has released the October 2009 Visa Bulletin which is the first bulletin of the new fiscal year and which bulletin makes EB-3 visa numbers available, although not with the cut-off dates as many EB-3 applicants have hoped for. Additionally, EB-2 notes small forward movement while EB-5 is now unavailable due to the expiration of the EB-5 Pilot program.

The Department of State (DOS) has released information and predictions that paint a grim picture for the movement of priority dates for the next few fiscal years. The speculation is partiuclarly bleak for Indian and Chinese nationals.

On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website.

Applicants must now file their Form I-90 and supporting documentation with the USCIS Lockbox facility in Phoenix.
This change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error. This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the United States.

Green cards (immigrant visas) are limited to a fixed number each year. For family-based green cards (relatives of U.S. citizens and permanent residents), the quota is about 226,000. For employment-based green cards, the quota is about 140,000. The quota is further divided into separate categories (such as EB-2 and EB-3), each with a separate quota.

To complicate matters further, no more than about 25,000 visas can be issued to citizens of any one country.

The United States Department of State is in charge of keeping track of how many visas are issued in the various categories. Unfortunately, in my opinion, they do a terrible job of educating the public about how the quota system works. So I will try to explain the system in a few sentences.

The State Department tries to ensure that visas are issued based on first-come, first-served. The Visa Bulletin is a waiting list that tells applicants where they are on the list.

But it is an inexact waiting list. It doesn't indicate how many people are on the list before you.

Imagine being told at a busy restaurant that you must wait for a table, but the Maitre D' cannot tell you how many people are waiting before you. "You came at 7:00 P.M., and we are now seating people who arrived at 6:00 P.M. But we can't tell you how many people arrived between 6:00 and 7:00, or how long you will have to wait. Enjoy your evening."

It gets even worse. Sometimes, the government makes a mistake. "Sorry, we forgot about a number of customers who came at 5:00 P.M., so now you have to wait even longer."

So how does a rational person deal with this system? You need much patience and firm guidance. Here's what I tell my clients applying through their employers:

1. For EB-2 cases for citizens of every country except those born in India and China, there is no waiting list. Your case will get done as soon as Immigration processes the application (which can still take 1-2 years).

2. For EB-2 cases for persons born in China, the waiting list is about 4 years. This might speed up a little in the next year or two.

3. For EB-2 cases for persons born in India, the wait is about 5 years. This might speed up in the future, although I'm not optimistic because there is a very large number of Indian applicants in this category.

4. For EB-3 cases for citizens of every country except those born in India, China and Mexico, the wait is about 3-4 years. This probably will NOT speed up in the future.

5. For EB-3 cases for persons born in Mexico, India and China, the wait is currently about 8 years. This should speed up in the next 1-2 years.

6. Indians, Mexicans and Chinese can get into the faster quota for a different country if they are married to a person born in a different country.

All green cards are the same; they all give you the right to live and work permanently in the United States. But there are dozens of different paths to the green card. This article discusses the path most commonly used by foreign workers: the Labor Certification system, also known as PERM.

The labor certification process is a means by which an employer can show that there are no available United States workers for a position, so that a foreign worker can be admitted to the United States as a permanent resident.

A few basic points of the system:

The Vermont Service Center (VSC) Liaison Committee recently offered guidance on avoiding the all too common situation in which the B1/B2 extension is approved, but the processing time took so long that by the time the approval came, the beneficiary was already unlawfully present!

We are receiving more and more questions from foreign nationals about the ability to file for H-1B extensions beyond six years under AC21 if an I-140 has been appealed.

The Department of Homeland Security has published a final rule, effective January 18, 2009, that expands the population of those who will be subject to US-VISIT requirements to nearly all non-U.S. citizens, including lawful permanent residents. Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas, among others.

As the dust from the election starts to settle, we have started receiving inquiries about the changes in immigration policy which may be expected from the new Obama-Biden administration.

The Department of State's Visa Office reported in the November 2008 Visa Bulletin that the level of demand being received from U.S. Citizenship and Immigration Services (USCIS) offices indicates that USCIS has a significant number of cases with priority dates that are earlier than the established cut-offs. This is likely to result in slow forward movement of the cut-off dates for most employment visa categories during the next few months, the Department said.

The USCIS has produced a fraud audit and compliance assessment report which aims to analyze the level of potential fraud, misrepresentation or lack of compliance in H-1B visa filings. http://www.laborimmigration.com/wp-content/uplo...

On October 14, 2008, CIS announced a final rule increasing the period of stay for TNs. The rule changes the initial period of admission for TN workers from one year to three years.