October Visa Bulletin and Check in With the Dept. of State

Because of the new format of the Visa Bulletin, it will be easier for me to break these updates into two sections: Section 1 will discuss the Final Action Date; and, Section 2 will discuss movements in the Dates for Filing section.

Final Action Date Movements:

Family Based: Most categories moved forward somewhere between 1-2 months. Some of the categories for the Philippines, etc. moved forward a little more than that (up to six months) but that was only in a couple of categories.

Employment Based:

EB-1: Still current for everyone

EB-2: Big move in China (which we had indicated could happen as early as October) from 2006 to January 1, 2012. Unfortunately, India went the opposite way – from January 1, 20016 to May 1, 2005.

EB-3: Most of the world stayed at August 15, 2015, however there was movement for certain countries. China, once again, moved forward rapidly to October 15, 2011 (from 2004) and the Philippines moved from December 22, 2004 to January 1, 2007. Unfortunately, once again, India retrogressed somewhat, going from December 22, 2004 to March 8, 2004.

Other Workers: Again, most of the world stayed at August 15, 2015, the Philippines and India saw the exact same movement in this category as was stated above for the EB-3 category. China progressed from January 1, 2004 to January 1, 2006

Dates for Filing

As this is the first month for this new section, we will just look at what the dates are. Also, every month at the beginning of this section I will indicate whether USCIS is accepting Adjustment of Status Applications based upon this date (they are going to make this decision on a monthly basis). It is also important to remember that the dates in this category are based upon the Department of State’s prediction of where the Final Action Dates will move within the next year.

For the Month of October USCIS will accept I-485 application based upon this date.

Family Based: Most categories have a Date for Filing about 1 year or so ahead of the Final Action date. A good example is the F2A (Spouses and Children of Permanent Residents). The Final Action Date is April 15, 2014 and the Date for Filing is March 1, 2015.

Employment Based:

EB1: As with the Final Action Date this is current for all countries

EB2: This is more interesting. While most countries are current, India and China are backlogged in this category. China, for the final action date, is in 2012, but the Date for filing is at May 1, 2014. So anyone from China with an approved or pending I-140 in the Eb-2 category with a priority date on or before May 1, 2014 (and in the US legally) can file their I-485 come October 1, 2015.

More interestingly, India, which saw their Final Action Date actual go backwards to 2005, has a Date for Filing of July 1, 2011. As stated above, this means that the DOS feels that they will be getting close to this date in the next year or so.

EB3 and Other Workers: This is at September 15, 2015 (about 1 month ahead of the Final Action Date) for most of the world. Exception are India, which is at July 1, 2005 (meaning there will not be much movement in this category for India over the next year), China, which is at October 1, 2013 for the EB3 category and January 1, 2007 for the Other Worker Category, and the Philippines, which is at January 2, 2015 for both categories (again, foreshadowing that there will be good movement in the Final Action date in these categories for the Philippines in the next year).

Check in With Charlie Oppenheim

The American Immigration Lawyers Association had its monthly check in with Mr. Oppenheim, the person at the DOS who is in charge of setting the above dates. Basically, they just reviewed the new format of the Visa Bulletin with him. However there was one item worth mentioning. When discussing what, if any impact, the Dates for Filing would have on the Final Action Dates, Mr. Oppenheim felt there would be little change except that By having USCIS allowing the filing of the I-485 based upon the Dates for Filing will give the DOS a better grasp of the actual numbers of applicants out there waiting for immigrant visas. This will result in less wild swings in the dates and more steady movements forward (hopefully).

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.

Court of Appeals AC21 Decision helpful to those using AOS Portability

The 11th Circuit Court of Appeals recently decided a case, Kurapati v. USCIS in which the Court issued an important decision that helps t changejobs

hose who filed an adjustment based upon an approved I-140 that was sponsored by an employer they no longer work for.

In most such cases, there is no real issue. According to AC21, if you have an approved I-140 and your I-485 has been pending for six months or longer, you are able to switch employers as long as the new position is “the same or similar” to the originally sponsored position. The exception to this is if USCIS revokes the I-140 for “cause” (i.e. fraud, or other reasons that led USCIS to believe that the I-140 should not have been approved to begin with). In such cases, USCIS would then deny the underlying I-485 as well. In most such cases, the first time that the employee knows that USCIS wanted to revoke the I-140 is after USCIS has already revoked the I-140 and denied their adjustment. This is because the Notice of Intent to Revoke is ONLY sent to the employer, not the employee. Unfortunately, in such cases the employer has little incentive to respond (if they are still in business) as the employer no longer works for them.

In one such case the employee, a Mr Kurapati challenged the revocation by filing an appeal with the Administrative Appeals Office and the US District Court. Both bodies stated that Mr. Kurapati did not have legal standing to file an appeal, and that only the employer could file an appeal of the revocation, despite the fact that the employer in this case no longer even existed. Mr. Kurapati then filed an appeal of the denials with the 11th Circuit Court of Appeals. The 11th Circuit, in looking at the case made two observations. First, they stated that the purpose of AC21 was to protect the rights of immigrants to change jobs without having to restart the entire green card process. Second, they noted that both Mr. Kurapati and his spouse were injured by the revocation of the I-140, as they lost the opportunity to adjust their status. Therefore, the court reasoned they DO have legal standing to appeal the denial of the I-140.

Employers should note that if an employee does challenge the revocation of an approved I-140 they may get access to all documents filed by the company in support of the I-140 and in response to the NOIR.

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 Know My Employer Sponsored Me, But I Found a New Job, Now What?

Being sponsored by an employer for a green card is prospective in nature. What this means is that the future employer and employee are attesting that they have the intent to enter into the employer-employee relationship UPON approval of the I-485 (or upon receiving the immigrant visa and entering the US if one uses Consular Processing). However, in many cases, for one reason or another, an employee either finds or has to find a new position with a new employer. The question is then, what is the effect of that new employment on the process? As with all questions asked of a lawyer, the answer is “it depends”.

Change of Jobs during the Pendency of the Immigration Process

The biggest factor is timing. If the change in employment occurs during the actual labor certification process or prior to the I-140 being filed, then the process, most likely, needs to be started over. If the I-140 has been filed and is pending, there is a chance that the case could survive, however according to AC21, the law pertaining to this area, in order to get the benefits of being able to continue to use the sponsorship process once an employer change occurs one needs an approved I-140 for the previous position AND the I-485 needs to be pending for at least 6 months. Prior to this, porting is not supported.

If you are able to use the AC21 process what you need to show is that the new position is the “same or similar” to the old position. USCIS looks not just at the job title and the DOT codes, but also at the actual duties to make this determination. Every case is different and needs to be looked at individually to make this determination. A good rule of thumb is that at least 50% of the duties need to be the same in order for the jobs to be considered similar (this is not to say that this will work in every case, as there are other factors to look at, but it is a general rule).

Change of Jobs AFTER the receipt of Permanent Residence

The last scenario would be if a job change occurs AFTER the I-485 is approved. In this case the biggest issue that arises is one of fraud. If you switch positions as soon as you have your green card, or soon thereafter, it creates the appearance of fraud – that is, it appears that you had no intention of actual working for the employer that sponsored you, which is immigration fraud. You can try to show that in fact it was not fraud, but you need to be aware of the issue up front so you can get the documents you need PRIOR to the job switch. If the sponsoring employer asks you to leave for any reason, get it in writing. If a grant, etc. is cancelled leading to you loosing your job, get something in writing. It is also important to discuss the reasons you are switching position with your attorney to make sure USCIS will consider them sufficient.

One point to keep in mind is that, assuming you meet the qualification of AC21, as long as you have the new job offer in hand before the I-485 is approved, the new position will be controlling on the process and you do not have to worry about not working for the original employer. Again, the job offer needs to be in hand before the I-485 is approved.

Conclusion

p>The above only scratches the surface on these issues and, again, we urge you to discuss any specific scenario you find yourself in with your attorney. And 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.