AOS – Immigration Briefs

October 2016 VIsa Bulletin: Forward Movement for All

unknown The Department of State released the visa bulletin for October 2016 recently. Below is a summary of movement and changes.

Family Based Immigrant Visa Numbers

F1 – Unmarried Sons and Daughters of US Citizens: This category moved forward about 1 week to September 22, 2090 for every country except Mexico (which moved forward 1 week to April 1, 1995 and the Philippines (which moved forward 1 week to August 1, 1995).

F2A – Spouses and children of Permanent Residents: All countries moved forward around 1 month, Mexico moved forward about 3 months to December 1, 2014. And the rest of the World moved forward about 5 weeks to December 22, 2014

F2B – Unmarried Sons and Daughters of Permanent Residents: Most of the world moved forward about 5 weeks to March 15, 2010. Mexico moved forward only 2 weeks to October 1, 1995 and the Philippines moved forward 1 month to January 1, 2006

F3 – Married Sons and Daughters of US Citizens: Most of the world moved forward about 3 weeks to December 22, 2004. Mexico moved forward about 1 week to November 22, 1994 and the Philippines moved forward about 3 weeks to July 8, 1994

F4 – Brothers and Sisters of US Citizens: China moved forward 4 months to May 1, 2003. India jumped just over 1 year to December 1, 2002. Mexico moved forward a couple weeks to May 1, 1997. The Philippines moved forward about 6 weeks to April 15, 1993. The rest of the world moved forward about 1 month to November 1, 2003

Predictions for coming months:

There should be forward movement on all categories in the next several months of about 2-6 weeks.

Employment Based Immigrant Visas

EB-1: As stated previously, this became current for everyone for October.

EB-2: Again, as we stated previously this became current for Worldwide numbers, Mexico and the Philippines. It moved forward to February 15, 2012 for China and to January 15, 2007 for India.

EB-3: Moved forward 1 month for Worldwide and Mexico to June 1, 2016. China jumped forward to January 22, 2013 (putting the EB-3 category ahead of the EB-2 for China). India Moved forward about 1 month to March 1, 2005 and the Philippines moved forward about 5 months to December 1, 2010.

Predictions for the Coming Months:

For EB-2s the Department of State sees China and India moving forward about 3 months (maybe 4 months for India) in the coming months. Worldwide and Mexico should remain current.

For EB-3s, they still feel that for the Worldwide numbers, demand may cause them to backlog (however this did not occur at all last year, and they thought it would then as well), but we will have to see. For China, EB-3 should move forward about 3 months. It will move forward only about 1 week for India and about 3 weeks for the Philippines.

July 2016 Visa Bulletin and Check-In with DOS

The Department of State (DOS) released the July visa bulletin recently and Charlie Oppenheim, the person at the DOS who is in charge of the visa bulletin also updated the American Immigration Lawyer’s Association on what further movement or backlogs can be expected in the near future.

For family based cases, there was not much movement at all. Below is a table showing the movement.

Family Based	All Chargeability Areas Except Those Listed	China – Mainland Born	India	Mexico	Philippines
F1	2 Months	2 Months	2 Months	2 Weeks	1 month
F2A	1 Week	! Week	! Week	None	1 Week
F2B	2 Weeks	2 Weeks	2 Weeks	None	1 Month
F3	None	None	None	None	1 Month
F4	1 Month	None	None	None	1 Month

For employment based, there was also not a lot of movement. Again, the movement and new dates are listed below:

Employ. Based	All Chargeability Areas Except Those Listed	China – Mainland Born	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	None (Jan 1, 2010)	1 Month (Nov 1, 2004)	C	C
3rd	2 Weeks (Mar 1, 2016)	None (Jan 1, 2010)	I Month (Oct 22, 2004)	1 Month (Oct 22, 2004)	3.5 Months (Feb 15, 2009)

In terms of future movements, we will look at family based categories first.

FB4- China: For China, the FB-4 category just recently retrogressed and will remain at its current date through July, and perhaps through the rest of the fiscal year (it will depend on usage for FB-1 through FB-3). However it will return to the prior cut off date by November of this year.

FB-4 India: Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Mr. Oppenheim predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Mr. Oppenheim anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

Moving on to employment based categories:

EB-2 and EB-3 China: There will be no forward movement in these categories for the rest of this fiscal year (the fiscal year ends on September 30, 2016). We will have to see what the new fiscal year brings, but hopefully there will be forward movement shortly after the new fiscal year.

EB-2 and EB-3 India: There may be some moderate movement forward in September, but it depends (see next category)

EB-2 Worldwide: It is looking increasingly likely that this category will become unavailable in September. However, since the new fiscal year begins October 1, they will, again, become current on that date.

EB-1 for India and China: Similar to EB-2 Worldwide, these categories will most likely become unavailable in September but go back to current in October.

If you have any questions leave a comment below or send me an email. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

June 2016 Visa Bulletin is Out

In the last week, the Department of State released the June, 2016 visa bulletin, USCIS has announced which tables they will utilize for this month and Charlie Oppenheim, the Department of State employee in charge of immigrant visa numbers, issued guidance for the coming months. Below is a summary of the relevant points for all three of these documents.

Family Based Cases

There was some slight forward movement in some categories, but not much. The largest movement was a backlog in the F4 category (Brothers and Sisters of US Citizens) for India and Chine. India dropped from 2003 to 2001, and there is little hope of forward movement until the next fiscal year. There has been high demand across the board in this category, and this is what is causing the retrogression. China went back to January of 2013, about a seven month retrogression. Again, high demand has caused the retrogression, but, in the case of China, there may still be some forward movement this fiscal year – depending on usage.

Employment Based

EB-1: While EB-1 remains current across the board, it should be noted that there us unusually high usage of EB-1 numbers this fiscal year. According to a recent update by Charlie Oppenheim this may result in corrective action later this fiscal year.

EB-2: China will retrogress to January 1, 2010 (as will China EB-3). Since EB-2 and EB-3 for China will be at the same date for the rest of the fiscal year (most likely) this should stop the upswell of downgrades from EB-2 to EB-3.

India is also retrogressing, but much more severely. India will be at October 1, 2004. There is a large amount of usage for EB-2’s in general, meaning that there most likely will not be any “unused” numbers for other countries that could be given to India. This, in conjunction with the number of EB-3 cases that have moved up to EB-2s, has led to this need for retrogression. However, Charlie Oppenheim, in his latest update, said this date could move forward if more EB-3 India cases are adjudicated, alleviating the burden of older EB-3 priority dates moving up to EB-2.

It does not appear that the EB-2 worldwide category will be retrogressed at this time.

EB-3: As stated above, China has retrogressed to 2010. India, on the other hand, moved forward slightly to September 22, 2004.

Worldwide held steady at February 15, 2016. Charlie did not indicate anything about what the future holds for EB-3 Worldwide numbers. If we get an update on this we will certainly let you know.

USICS

USCIS has, once again, decided that the final action table should be used for both Family based and Employment based green cards. This is frustrating to not only attorneys and their clients, but also to the Department of State. The only way they can get a good handle on what the actual backlogs are for both EB-2 India and China and EB-3s for everyone, is if those in the backlog are able to file their adjustment of status applications. If USCIS would utilize the Dates for Filing Table, it would give DOS the visibility they need to accurately predict usage and would prevent these wildly swinging priority date movements. Alas, USCIS does not look like they will employe these dates any time soon. This is unfortunate and shows that USCI was not serious about reforming the current visa processing, as if they were, they would at least explain why they are failing to utilize the Dates for Filing and helping the DOS get more visibility into these issues. We will certainly update you if there is any change in this area.

USCIS Proposes Increases to Filing Fees

USCIS has proposed a new fee structure – raising certain fees, keeping certain fees at their current level, and even lowering some fees. As part of its bi-annual review, USCIS determined that what it was receiving in user fees was insufficient to allow it to continue its current operations (USCIS receives very little from the general budget (and what it does get is for special projects) and is almost entirely funded by user fees).

The proposed increases that we feel are of importance are as follows:

FORM NUMBER	PREVIOUS FEE	NEW FEE
I-90 – Replace PR Card	$365	$455
I-129 – Nonimmigrant Worker	$325	$460
I-130 – Relative Petition	$420	$535
I-131 – Re-entry Permit	$360	$575
I-140 – Employment based Green Card Application	$580	$700
I-290B – Appeal	$630	$675
I-485 – AOS	$985	$1140
I-539 – Extend/Change Status	$290	$370
I-751 – Remove Conditions	$505	$595
I-765 – Work Authorization	$380	$410
N-400 – Naturalization	$595	$640
N-600 – Cert. Of Citizenship	$600	$1170

It should be noted that the above do not include the biometrics fee of $85 (which will remain the same) where needed. In addition to the above, the USCIS Immigration Fee (paid when you enter the US on an Immigration Visa) is being raised from $165 to $220.

USCIS does do its best to keep its fees down on most of the important applications. The application fees that were raised the most are those related to the Alien Entrepreneur Visa. The I-526, Application for Alien Entrepreneur went from $1500 to $3675 and the I924 Application for Regional Center Designation went from $6230 to $17,795. There is a sixty day comment period after which USCIS will publish the final rule with a date for implementation of the new fees. We will, of course, update you when that happens.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS, EAD Cards and Adjustment Interviews

Unknown When you go in to USCIS to be interviewed for your I-485 application, it has been the practice for USCIS to take your EAD card at that time. Why did they develop this policy? Really who knows. It makes no sense as you are not yet approved and need the EAD to travel and work. Despite this, USCIS has routinely done these (they say only in cases that they are going to approved, but my experience is that they do this in every case).

Recently the American Immigration Lawyer’s Association (the Bar Association for Immigration Lawyers) met with USCIS on this issue and, eventually, USCIS changed their position. They have informed offices that they should return the EAD card to applicants at the end of the meeting. If the office does not, you can ask them to return it based upon the Central Office policy. We are glad that USCIS agreed to this as keeping the EAD card, especially when there are cases where the office may expect to have the case approved quickly, but is unable to get it approved quickly (perhaps the officer leaves and the case is not re-assigned for a couple of weeks or months, perhaps something else comes up). Leaving a person without the EAD leaves them without proof of ability to work or travel, and with less proof of status in this country.

In addition, USCIS informed AILA that an “ADIT stamp may be provided before the arrival of the Permanent Resident Card at the discretion of the field office,” and that “a new LPR will be recognized as employment authorized, based on LPR status, in the e-verify and SAVE systems, should an inquiry be made between the date that a Form I-485 is approved and when the Permanent Resident Card is received.”

These are also welcome changes to current policy. If you have any questions leave a comment below or send me an email. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

February 2016 Visa Bulletin -Not Much Movement

images The Department of State just came out with the Visa Bulletin for February 2016. Unfortunately there was not much movement on either the family or employment front. Below we summarize what movement there was.

Family Based Immigrant Visas:

Final Action Dates: Most categories moved forward between 1-2 months.

Dates For Filing: Again, they moved 1-2 months forward across the board.

Employment Based Immigrant Visas:

Final Action Dates: EB-2 – China moved forward slightly from February 1, 2012 to March 1, 2012. India moved forward a good bit from February 1, 2008 to August 1, 2008. a jump of 6 months. EB-3 – Worldwide and Mexico did not move and are still at October 15, 2015. China moved from July 1, 2012 to October 1, 2012. India moved from May 15, 2004 to June 15, 2004 and the Philippines moved from November 1, 2007 to January 8, 2008.

DatesFor Filing: There was no movement on these dates.

Dates Used by USCIS:

As you know, USICS has stated that they will inform the public each month as to whether the Final Action Dates or the Dates for Filing can be used by the public in terms of determining when you can file the I-485.

Last month (for January, 2016), USCIS stated the following:

Family Based Cases: Dates for Filing
Employment Based Cases: Final Action Dates

For this month, USCIS has not yet stated what they will be following. Hopefully this information will be released shortly. As soon as it is we will update you.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Updates its Directions for Use of the New Visa Bulletin Tables

USCIS has updated its directions in terms of when the new “Dates for Filing Visa Applications” chart can be used to determine when you can file your I-485, or if you need to wait for the “Final Action Date” to become current.

To refresh people’s memories, the Department of State, starting with the October Visa Bulletin, changed the way they report priority dates for immigrant visas. They now have two charts that they present for family based immigrant visas, and two charts for employment based immigrant visas. The first chart, the ‘Final Action Date” coincides with the old visa bulletin and lists the date at which a final action can be taken on the I-485 case and an immigrant visa can be issued. The second chart, the “Dates for Filing Visa Applications” coincides with the date that the Department of State uses to let Embassies and Consulates know when to start processing immigrant visa cases that they think will become current in the near future. USCIS is now also using this second chart to determine when you can file the I-485 application if you are in the US, with one proviso. Each Month USCIS will determine whether they are following this second chart or not. If so, you can file your I-485 according to the “Dates for Filing…” chart. If not, you can only file when your date is current on the “Final Action Date” chart.

We knew all this previously, but USCIS’s decision on whether to use the “Date for Filing…” chart was listed in the Visa Bulletin itself. However, starting with the November Visa Bulletin, USCIS no longer lists that data in the Visa Bulletin, instead it appears elsewhere on their website. According to USCIS:

Beginning with the November 2015 Department of State (DOS) Visa Bulletin, if USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on www.uscis.gov/visabulletininfo that applicants may use the Dates for Filing Visa Applications chart. Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications.

We anticipate making this determination each month and posting the relevant chart on our website within one week of DOS’ publication of the Visa Bulletin.

For those who are trying to determine when you can file, the USCIS website is not where you will have to go to ensure you have updated information in this regard.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

I-140 Premium Processing: Update

Unknown Just about 1 month ago I wrote a blog post on using premium processing for EB-1 (both Outstanding Researcher and Extraordinary Ability) and EB-2 National Interest Waiver applications. Well, USCIS just put in place a new policy that may cause, at least some people, to change their minds and not use this service. Before discussing the specific policy, however, let me give a quick overview of the general policy.

Generally, when you file for I-140 it will go to either the Texas Service Center or the Nebraska service center depending on where you live. The East coast and south go to Texas Service Center and the Mid-West and West Coast go to the Nebraska Service center. This is a rough rule, and if you follow this link, you can see which states file where. If you file a case via premium processing, or upgrade a pending case from the regular process to premium processing, it would be filed to the same location depending on which state you live in. Apparently, however, the Texas Service Center has been receiving more such application than the Nebraska Service Center, so in the hopes of evening out the case load, USCIS has changed the filing location for some cases.

Starting on October 19, 2015, all I-140 cases that you wish to file Premium Processing for people living in Maryland, New Jersey, New York and Pennsylvania are to be filed at the Nebraska Service Center. As stated in my previous blog post, the Nebraska Service Center overall, seems to have a harder stance on the criteria for these applications, especially the Extraordinary Ability and Outstanding Researcher petitions. Therefore, this is a major consideration that now needs to be taken into account whenever someone is thinking about using the premium processing service.

There is one possible way around this, although we are not certain yet, how these cases will be handled. If the case is currently pending at the Texas Service Center and you wish to upgrade it, you would still file that Premium Processing request at the Texas Service Center. What we do not know is if these cases will be transferred or will stay at the Texas Service Center. My guess is that they will stay, as USCIS will not want to loose even a day transferring the file. However, as stated, at this point I do not know what they will do, but I will certainly update you once I find out.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

So your EB-1 was denied, should you appeal?

images We have had clients contact us wanting to appeal the denial of their case by USCIS to the Administrative Appeals Office (AAO). Generally, our response to people is that appeals are extremely difficult to get approved, and usually not worth the money. However many people still want to appeal and there are certainly many attorneys out there who will appeal cases telling people that they have a “good chance” at winning the appeal. The question is, what are the actual chances of winning on appeal?

Well, we can now answer this as the AAO released a detailed list of their adjudications over the past several years. So lets look at some of those numbers now:

EB1A: Extraordinary Ability

This is probably the type of case we most often see people wanting to appeal denials. The EB-1A category is hard enough to begin with, with only about a 50% approval rating. How is it on appeals? Well, in 2011 there were a total of 146 cases decided by the AAO. Of those, 137, or 93.9%, were dismissed. Only 8, or 5.4%, were sustained (i.e. the EA was approved by the AAO), and only 1 (or 00.7%) were remanded to USCIS for further decision. In 2012 93.6% (204 out of 218) cases were dismissed and only 6.4% (14) cases were sustained. In 2013 92.4% of cases were dismissed (122 out of 132). 8 cases were sustained (6%) and 2 were remanded (1.6%). And in 2014 88 cases (91.7%) of cases were dismissed and 5 cases were sustained (5.2%) and 3 cases were remanded (3.1%).

EB-2 National Interest Waiver

Unfortunately USCIS has not released approval statistics for this category, but we know it is much higher than 50%, probably around 70% or so. However, for the appeals, the rates are very similar to the EB-1A (but much fewer cases were decided). IN 2011 96.5% of cases appealed in this category were dismissed. In 2012 94.8% of cases were dismissed. In 2013 94.3% of cases were dismissed and 92.7% of cases were dismissed in 2014.

EB-1B: Outstanding Researcher

The EB-1B category generally has a very high approval rating overall, but except for one year, this did not carry over to the appeals area. In 2011 only 68.8% of cases were dismissed which is actually not bad. This means that almost 30% of the appeals were sustained, which is much higher than the EA and NIW. This changed rapidly in 2012 and 2013, when the rate of dismissal increased to 97% and 95% respectively. This peaked in 2014 when 100% of cases decided were dismissed.

CONCLUSION

What the above shows is that, for scientists, appealing a case is usually not a good idea as it is extremely difficult to get it approved. In most cases, refilling the case, either right away or a little while down the road, is usually the best course. Of course every case is different, and there are certain cases for which an appeal actually makes sense. Generally however, if the only response on appeal is that USCIS made the wrong decision, it will not work. There generally has to be something else – either USCIS mis-stated the law in some way, did not actually consider certain evidence at all (i.e. it was not discussed at all), or stated that certain evidence was not probative when, in actuality, it was obviously very probative (i.e. your work had been cited 1000 times, but the officer says that citations are not probative of the importance or impact you work has had). Not even every case with this type of problem will get approved on appeal, it simply increases the likelihood of success.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Good Article on Our Criminal Justice System

Sometimes it is possible to get caught up in our criminal justice system because you are in the wrong place at the wrong time or with the wrong people. This article at the lawyerist,com is a wake up call to those who are not citizens to remember – just because you may be innocent does not mean you will not be caught in the system or get out of the system without issue. And anything on your record can affect your immigration status even for permanent residents. Very important reminder to try as hard as you can to stay out of any such situations.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.