Visa Lawyer Blog

USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the officer has determined by a preponderance of the evidence that at least three of these criterion have been met, he or she moves into the second part of the review. For EB1A cases, the second part of the review involves determining whether the applicant has achieved a level of expertise indicating that he or she is one of a small percentage who has risen to the very top of the field of endeavor, he or she has shown sustained national or international acclaim, and his or her achievements have been recognized in the field of expertise. This basically means that the officer will look at all the evidence as a whole and determine if the case is approvable. This new standard may decrease the number of approved cases since, by implementing this secondary review process, USCIS officers have the discretion to deny cases even if three EB1A criteria have been technically met.

New Evaluation Process For EB1B Cases

For the first step in evaluating EB1B cases, the officer will check to see if evidence is provided to show that the applicant has met at least two of the following six criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

For the second part of the review for EB1B cases, the officer will make a final merit determination on whether or not the applicant has, by a preponderance of the evidence, demonstrated that he or she is recognized internationally as outstanding in a specific academic area. Therefore, simply showing that two of the criterion have been met does not necessarily mean that the case will be approved. This, in turn, greatly expands the USCIS officer’s discretion in deciding which cases to approve.

Prior to this USCIS memo, the evidence was evaluated only in the context of meeting the necessary criteria for each type of case. Now by adding a second “final determination on the merits” phase of review, USCIS officers have more flexibility in denying cases or issuing Request For Evidence notices even if the baseline criteria has been met. This memo essentially gives the USCIS officer wider discretion in adjudicating EB1 cases since it has added a new level of review which follows a fairly subjective standard. As a result it is very possible that immigration through the EB1A, EB1B, and EB2 Exceptional Ability categories will become more difficult than it has been in the past. However, due to the recent immigrant visa retrogression for people born in India and China, there is an increasing number of Chinese and Indians who choose to apply through the EB1A or EB1B categories rather than wait for visa availability in the EB2 category. Hence, we recommend to consult a qualified immigration professional before proceeding with EB1 and EB2 cases.

The Department of Labor (DOL) issued new PERM FAQs on August 3, 2010. The issues addressed by DOL in this round of FAQs include expedite requests, how to document the use of an employee referral program, unsolicited documentation and what constitutes a "business day" for purposes of posting the Notice of Filing. Within the FAQs, DOL states the following:

* Expedite Requests - DOL clarifies that the Office of Foreign Labor Certification (OFLC), as a matter of long-standing policy, will not accept requests to expedite PERM applications;
* Employee Referral Programs (ERP) - DOL states that an employer can document its use of an ERP with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered. The employer must document the existence of the ERP, and that its employees were aware of the vacancy of the specific position for which certification is being sought. This can be achieved through posting on the employer's website. However, the physical Notice of Filing shall not be sufficient for this purpose;
* Unsolicited Documentation - DOL emphasizes that if unsolicited documentation is provided to the OFLC in support of a pending PERM application, then the application will automatically be placed in the audit queue;
* Business Day - As part of the required recruitment procedures to support a PERM application, a Notice of Filing must be physically posted for 10 consecutive business days. The OFLC clarifies that for purposes of the Notice of Filing, a business day will be defined as Monday through Friday, except for Federal holidays.

If you need support with your PERM case, feel free to email me.

A great update from AILA to our anxious EB3 applicants and blog readers. Many I-140 denials came out of the Service Centers in the past few months. These denials resulted when applicants failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010.

Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor's degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.

However, this new form does require the petitioner to distinguish between a professional with a Bachelor's degree and a skilled worker. The definition of professional is set forth in the regulations at 8CFR 204.5(l)(2), which states:

Professional means a qualified alien who holds at least a United States Baccalaureate degree or a foreign equivalent degree and who is a member of the professions. (Italics in original, emphasis added)

The application of this definition by NSC has resulted in the strict review of whether or not a foreign degree is the equivalent of a U.S. Bachelor's degree and does not recognize experience as the equivalent of a degree. Thus, the standard to determine equivalence is often different from the standards set forth on the ETA 9089 which may establish alternative requirements that equate a pre-determined level of experience as a substitute for a degree.

This standard is similar to the second preference regulation which also requires a specific degree that is the academic equivalence to meet the requirements of the second preference (EB-2). Lawyers should therefore carefully review qualifications to determine whether the beneficiary meets the qualifications of a professional, pursuant to Section 203(b)(3)(ii), or is a skilled worker under Section 203(b)(3)(i).

A denial on this issue will not preclude the filing of a second I-140 petition using the same approved PERM application but classified as a skilled worker. The cover letter and materials with a second I-140 petition should reference the first petition, include a copy of the denial, and advise NSC that the original PERM Application Form ETA 9089 can be located in the original file. The cover letter should also explain why the second petition has corrected the deficiency upon which the first petition was denied. The expiration of the Certified ETA-9089 should not preclude filing a second petition provided the first petition was filed prior to the 180-day expiration date.

Aliens who married or had children before the date of obtaining permanent residency can possibly confer “following-to-join” benefits to their family members. Due to this process, spouses and children will be able to receive green cards quickly. “Following-to join” is not family based immigration, but is similar to a child/spouse receiving derivative benefits based on a primary LPR’s immigration petition.

Here are the following requirements to be met in order for a spouse or child to qualify under “following-to-join”:
1. The LPR must have adjusted status or obtained an immigrant visa through a preference category (family or employment based) or diversity lottery. A LPR’s visa number must also be current in order for a family member to receive “following-to-join”.

2. The petitioner married/had children before becoming a permanent resident and the relationship between the permanent resident and spouse/child is intact at the time of filing. Children of LPRs must be unmarried and under the age of 21. Furthermore, the child/step-child must be from an existing marriage before the LPR obtained permanent residency.

“Following-to-join” is convenient because it allows primary beneficiaries to do away with filing a separate I-130 for their spouse or child, greatly expediting the green card approval process. Furthermore, spouses and children of LPRs do not have to wait for a visa number to become available. Where a LPR’s spouse or child currently resides affects what procedures he/she needs to follow. If ones spouse and/or child are already in the United States, they may apply for adjustment of status (I-485) based on “following-to-join” and if they are outside of the United States then LPRs need to inform a U.S. consulate of their lawful permanent residency status in order for their family members to apply for an immigrant visa.

The U.S. Department of State released the new visa bulletin for July 2010 on June 10, 2010.

For the month of July, the EB-1 category remained current for both Chinese and Indian nationals. In the EB-2 category, cut-off dates stayed the same for Chinese nationals (November 22, 2005), but moved forward eight months for Indian nationals from February 1, 2005 to October 1, 2005. In the EB-3 category, dates moved forward from June 22, 2003 to August 15, 2003 and from October 22, 2001 to November 22, 2001 for Chinese and Indian nationals respectively

For the month of June, the EB-1 category was current. In the EB-2 category, dates moved forward for mainland Chinese nationals from September 22, 2005 to November 22, 2005 and remain unchanged for Indian nationals (February 1, 2005). In the EB-3 category, dates moved forward for both mainland Chinese nationals from April 22, 2003 to June 22, 2003 and Indian nationals from October 1, 2001 to October 22, 2001.

This is a summary from AILA. The following immigration-related bills were introduced into the House of Representatives and the Senate in March and April:

E-Verify Loan Origination Act of 2010 (H.R. 4744)

Introduced by Rep. Marchant (R-TX) on 3/3/10

Summary: Amends the Federal National Mortgage Association Charter Act and the Federal Home Loan Mortgage Corporation Act to prohibit the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation Act (Freddie Mac) from purchasing a single-family housing (1-to-4 family residence) mortgage unless the identity and work eligibility of the mortgagor has been confirmed by an inquiry made through the basic pilot E-Verify program under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Amends the National Housing Act to prohibit the Secretary of Housing and Urban Development (HUD) from insuring any single-family housing mortgage unless the identity and work eligibility of the mortgagor has been confirmed by an inquiry made through the basic pilot E-Verify program. Permits the lender and the Secretary to submit such inquiries.

Secure Visas Act (H.R. 4758)

Introduced by on 3/4/10 Rep. Smith (R-TX)

Summary: Amends the Homeland Security Act to grant the Secretary of Homeland Security (DHS), except for the Secretary of State's authority with respect to diplomatic- and international organization-related visas, exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act (INA) and all other immigration or nationality laws relating to U.S. consular officer visa functions.

Adoption Fairness Act (S. 3091)

Introduced by Sen. Klobuchar (D-MN) on 3/9/10

Summary: Amends the Immigration and Nationality Act to prohibit the Secretary of Homeland Security (DHS) from charging a fee for the issuance of a Certificate of Citizenship for a child who is adopted by a U.S.-citizen parent and who is eligible for automatic citizenship regardless of whether the child's adoption was finalized in the United States or in a foreign country.

Restoring Protection to Victims of Persecution Act (H.R. 4800)

Introduced by Rep. Stark (D-CA) on 3/10/10

Summary: Amends the Immigration and Nationality Act to eliminate the one-year deadline for application for U.S. asylum.

H.R.4835

Introduced by Rep. Whitfield (R-KY) on 3/12/10

Summary: Amends the Immigration and Nationality Act to state that an employer who pays a U.S. worker the federal minimum wage or the prevailing wage shall not be required to pay an H-2A visa worker (temporary agricultural worker) similarly employed more than such wage.

No Sanctuary for Illegals Act (H.R. 5002)

Introduced by Rep. Burton (R-IN) on 4/13/10

Summary: Directs the Secretary of Homeland Security (DHS) to: (1) increase border patrol recruitment incentives by offering a ($40,000 maximum) repayment of higher education loans; and (2) develop border patrol retention incentives through the establishment of a retention program. Authorizes the Secretary to deploy newly developed technologies to secure U.S. international land and maritime borders.

Protect Our Workers from Exploitation and Retaliation (POWER) Act (S.3207) [NOTE: No link available]

Introduced by Sen. Menendez (D-NJ) on 4/14/10

Summary: The bill protects all workers by giving them a fair shot at reporting employers who violate civil and labor rights to the federal authorities. The bill is a response to cases across the country of workers who have faced unjust and illegal retaliation by employers for asserting their basic labor and employment rights. The POWER Act will ensure that employers do not intimidate or retaliate against U.S. or immigrant workers to trump civil rights and labor law in the workplace.

StartUp Visa Act of 2010 (H.R. 5193)

Introduced by Rep. Maloney (D-NY) on 4/29/10

Summary: Amends the Immigration and Nationality Act to establish an employment-based, conditional immigrant visa (StartUp visa) for a sponsored alien entrepreneur: (1) with required amounts of financial backing from a qualifying investor or venture capitalist; and (2) whose commercial activities will generate required levels of employment, revenue, or capital investment.

The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2010 diversity lottery. The diversity lottery was conducted under the terms of section 203(c) of the Immigration and Nationality Act and makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

Winners should start finding out very soon. Notifications to the randomly-selected diversity visa or "green card lottery" winners are being sent between May and July 2010.

How does it all work?

Soon an official letter from the U.S. Department of State Kentucky Consular Center (KCC) in Williamsburg, Kentucky will be sent to the mailing address that you provided in your entry. Being selected as a lottery winner does not guarantee that you will receive a visa; you must still apply and qualify for the immigrant visa. The notification letters will provide further instructions, including information on additional forms and documentation required and immigrant visa application fees.

Only participants in the DV-2010 program who were selected for further processing have been notified. Those who have not received notification were not selected. They may try for the upcoming DV-2011 lottery if they wish. The dates for the registration period for the DV-2011 lottery program will be widely publicized during August 2009.

More from the State Department

A United States Permanent Resident Card, known informally as a green card (due to the color of some earlier variants), is an identification card attesting to the permanent resident status of an alien in the United States of America. Green card also refers to an immigration process of becoming a permanent resident.

The green card serves as proof that its holder, a Lawful Permanent Resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the USA. The holder must maintain permanent resident status, and can be removed from the United States if certain conditions of this status are not met.

The DHS Office of Immigration Statistics issued its Annual Flow Report on U.S. Legal Permanent Residents (LPRs) for FY 2009. In 2009, a total of 1,130,818 persons became LPRs of the U.S and obtained Green Cards. The majority of new LPRs (59 percent) already lived in the United States when they were granted lawful permanent residence. Nearly two-thirds were granted permanent resident status based on a family relationship with a U.S. citizen or legal permanent resident of the United States. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent).

Read the report here Download file

The Congressional Research Service (CRS) issued report on legislative developments in visa policy over the past 20 years and analysis of statistical trends in visa issuances and grounds for exclusion.

The conventional wisdom is that the terrorist attacks on September 11, 2001, prompted a substantive change in U.S. immigration policy on visa issuances and the grounds for excluding foreign nationals from the United States. A series of laws enacted in the 1990s, however, may have done as much or more to set current U.S. visa policy and the legal grounds for exclusion.

Foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted. Those admitted on a permanent basis are known as immigrants or legal permanent residents (LPRs), while those admitted on a temporary basis are known as nonimmigrants (such as tourists, foreign students, diplomats,temporary agricultural workers, and exchange visitors). They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission.

The burden of proof is on the foreign national to establish eligibility for a visa. Conversely, foreign nationals also must not be deemed inadmissible according to other specified grounds in §212(a) of the INA. These §212(a) inadmissibility criteria are health-related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and aliens illegally present or previously removed.

The number of aliens excluded on the basis of §212(a) of the INA has fluctuated over the years. In FY2008, §212(a) exclusions of prospective nonimmigrants hit 35,403 and surpassed the prior high point of 34,750 in FY1998. For prospective LPRs, §212(a) exclusions peaked in FY1998 and FY1999, reaching over 89,000 in both years. The §212(a) exclusions of prospective LPRs fell from FY2000 through FY2003, then began climbing to reach 77,080 in FY2008.

Exclusions of nonimmigrant petitions have a somewhat different pattern than that of immigrant petitions. Violations of immigration law were the leading category from FY1994 through FY2006, but fell to the second ranking by FY2008. Illegal presence and prior removal became the leading ground in FY2008. Over time, criminal activity has become a more common ground for refusal, and has represented a lwas for immigrant petitioners.

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals enacted over the past two decades. Expanding the grounds for inadmissibility, conversely, might be part of a more restrictive immigration reform policies. Whatever the final solution will be, reform of our current system is needed, and now more than ever.

Download the report here Download file

The Department of State just released the new visa bulletin for April 2010 on March 12, 2010.

EB-1 category is current for the month of April 2010. For mainland Chinese nationals, the cut-off date progressed from July 8, 2005 to August 22, 2005 in the EB-2 category. For Indian nationals, the cut-off date in the EB-2 category remains unchanged from March (February 1, 2005). In the EB-3 category, dates progressed for mainland Chinese nationals from December 15, 2002 to February 1, 2003 and for Indian nationals from July 1, 2001 to September 8, 2001.

In the month of March, the EB-1 category remained current from February. In the EB-2 category, cutoff dates for Chinese and Indian nationals both moved forward. For mainland Chinese nationals, dates progressed 47 days from May 22, 2005 to July 8, 2005. For Indian nationals, dates progressed 10 days from January 22, 2005 to February 1, 2005. In the EB-3 category, dates progressed for mainland Chinese nationals from September 22, 2002 to December 15, 2002 and for Indian nationals from June 22, 2001 to July 1, 2001.

Consular processing has undergone rapid and systemic changes during the past five years, and the rate and scope of change does not appear to be slowing. Enhanced security checks and inter-agency data sharing—among a massive wave of other changes—makes consular processing a daunting task that ensnare many unsuspecting visa applicants in problems and delays.

While many of the security measures were expected after 9/11, the effects were devastating to many U.S. visa applicants, who routinely encountered completely unpredictable surprises that caused unexpected and lengthy delays in visa issuance. These initial difficulties, delays and the resulting uncertainty for visa applicants and employers adversely impacted critical U.S. economic sectors including trade, tourism, scientific research, academia, and entertainment and business generally.

Newsweek recently published a story about an applicant's experience with coming to America and the frustrations with this process.

When the American embassy called in August 2004, I was just nine days away from starting a job at Notre Dame's Kroc Institute for International Peace Studies. I had already shipped my possessions from Geneva, Switzerland, where I was living, to Indiana, and enrolled my kids in a school near our new home. Suddenly, however, an embassy official was telling me my visa had been revoked. I was "welcome to reapply," the official said, but no reason was offered for my rejection. Sitting in a barren apartment, I decided the process had become too unpredictable; I didn't want to keep my family in limbo, so I resigned my professorship before it began. I launched a legal battle instead.

It was hardly a fight I had expected. Less than a year earlier, the State Department had invited me to speak in Washington, D.C., and introduced me as a "moderate" Muslim intellectual who denounced terrorism and attacks against civilians. Now it was banning me from U.S. soil under a provision of the Patriot Act that allows for "ideological exclusions." My offense, it seemed, had been to forcefully criticize America's support for Israel and the wars in Iraq and Afghanistan. The U.S. accused me of endorsing terrorism through my words and funding it through donations to a Swiss charity with alleged ties to Gaza. Civil-liberties groups challenged my case in court for almost six years until, in late January, Secretary of State Hillary Clinton dropped the allegations against me, effectively ending my ban.

In early April I will make my first public appearance in the U.S., at New York City's Cooper Union, participating in a panel discussion about Muslims. While it's a victory of sorts, the fight is not over. Numerous foreign scholars remain banned from U.S. soil. Until the section of the Patriot Act that kept me out of the country is lifted, more people will suffer the same fate. Although the exclusions are carried out in the name of security and stability, they actually threaten both by closing off the open, critical, and constructive dialogue that once defined this country.

Read more here

Security concerns are pivotal as the United States grapples with the dilemma of balancing legitimate international travel needs with the ever-present security risks facing the nation. Globalization has increased the frequency and necessity of travel to the United States by foreign nationals. While DOS has softened its approach from a “zero-tolerance” policy to a more open, “Secure Borders, Open Doors” policy, the government’s attempt to balance national security concerns with legitimate travel needs still leaves many visa applicants facing unpredictable delays and a myriad of potential pitfalls.

What a great initiative introduced recently. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the Chairman and Ranking Member of the Senate Foreign Relations Committee, today introduced legislation to drive job creation and increase America’s global competiveness by helping immigrant entrepreneurs secure visas to the United States.

The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

More than 160 venture capitalists from across the country have endorsed the senators’ proposal. Great idea, let us hope it will become a reality.

The Department of State has released the new visa bulletin for February 2010 on January 8, 2010.
USCIS has reported last month that the EB-1 category was still current for all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

This month in the EB-2 category, cutoff dates for mainland Chinese nationals moved forward 21 days from May 1, 2005 to May 22, 2005; for Indian nationals, the cutoff date remained unchanged (January 22, 2005). In the EB-3 category, cutoff dates for mainland Chinese nationals moved forward from August 1, 2002 to September 22, 2002. For Indian nationals applying in the EB-3 category, cutoff dates remained unchanged from last month (June 22, 2001). Once again, the EB-1 category is still current.

Visa numbers for the EB-1 category remained current throughout the year 2009. From October 2009 until now, the EB-2 and EB-3 categories have not changed drastically as both are still heavily backlogged. We hope that things will improve in coming months.

The United States Department of Labor (DOL) has announced on January 14, 2010 that a new online prevailing wage system for PERM and H-1B will be launched on January 21, 2010. This is a big change in DOL’s practice regarding the prevailing wage determination system. For the past decade, prevailing wage determination for PERM and H-1B has been performed by State Workforce Agency. Employers who request a determination for a prevailing wage need to file an application with the state wage agent when a position is offered. Under the PERM system, a prevailing wage determination must be received prior to filing the PERM labor certification, the first step in an employment sponsored immigration petition.

DOL began this new centralized system on January 1st, but it has only been available through paper filing for the first couple of weeks. The new online prevailing wage system will be incorporated into the existing iCert system that DOL currently uses to handle Labor Condition Applications for H-1B petitions.

The newly updated iCert system will have several upgraded features. Once logging into iCert, a user will immediately be able to see case activity and the status and decision passed on the last ten applications submitted. Now, users will be able to electronically file and manage Form 9141 in a similar fashion to LCA Form 9035. If a user does not finish an application in one sitting, he/she can save the application and return to it later. Users can also withdraw submitted applications or delete unfinished ones. In addition, a user can reuse information from an old application for a new one. Via the upgraded system, printable forms and other instructions are now directly accessible from the prevailing wage application. On applications that have received decisions, users can also electronically request a Redetermination Review. Finally, the new system will accord much more control over sub-accounts, allowing users to block or grant access to the prevailing wage feature.

iCert system is a centralized federal system which will provide solution to ample prior problems with the prevailing wage determination. In the past, there were variations in practice and standards from state to state. Due to this, the new prevailing wage system will be subject to more universal standards which will make it more reliable, and much more predictable regarding cases for any position around the nation.

We hope that this innovative way will work in an efficient way. We will make you aware about the technical issues of this new system, if any.

According to CNN, America could be facing a nursing shortage that will worsen exponentially as the population grows older. The problem: Baby boomers are getting older and will require more care than ever, taxing an already strained nursing system.

Barry Pactor, international director of global health care for consulting company HCL International, agrees that more nurses should be trained within the U.S. system. But as a short term solution for this "huge shortage," he said the U.S. government should loosen immigration restrictions on foreign health care workers.

"I don't see this as foreign nurses taking American jobs, because these are vacancies that already exist and cannot be [filled] by nurses currently in training," he said. "We'd be filling in the gaps until the training can catch up with the demand."

Read More...

The Department of State has just released the new visa bulletin for January 2010 on December 10, 2009.

Last month, the EB-2 category for both mainland Chinese and Indian nationals remained unchanged from the November visa bulletin. In addition, the EB-1 category stayed current for worldwide applicants. Cut-off dates in the EB-3 category moved forward nine days from April 22, 2001 to May 1, 2001 for Indian nationals and did not change for mainland Chinese nationals.

Based on the January 2010 visa bulletin, USCIS reports that the EB-1 category is still current in all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

The EB-2 and EB-3 categories are usually backlogged or unavailable year-round. We are fairly certain that the EB-3 category will become unavailable once again this year. As the EB-3 category is for unskilled workers, skilled workers with at least 2 years of experience, and professionals with a bachelor’s degree, the pool of applicants is much larger than for the EB-1 and EB-2 categories, which are usually reserved for highly specialized workers or workers with graduate level degrees. Perhaps with the recent implementation of new protocol at USCIS, visa backlogging will not be as much of a problem this year.

We will keep you updated on further visa bulletins in advance.

So we thought the new ntroduction of ICERT was bad, listen to this upcoming change. In accordance with its PERM labor certification regulations, the Department of Labor (DOL) has provided notice that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) will receive and process prevailing wage determination (PWD) requests for use in the H-1B (specialty occupations), H-1B1 (Chile/Singapore nationals), H-1C (registered nurses), H-2B (temporary and seasonal workers), E-3 (Australian nationals), and permanent labor certification programs starting January 1, 2010.

Under the new centralized process, PWD requests will be filed using Form ETA-9141 and submitted by mail or courier to the NPWHC in Washington, D.C. State Workforce Agencies will continue to process any PWD requests (as well as subsequent prevailing wage challenges) received in their offices through December 31, 2009.

Now for those of you familiar with the H2B process, form 9141 is already being used to obtain the PWD. My experience with H2B processing since the new change is nt positive. Sometimes we have to wait for 30 days to get the PWD. Imagine same story with future H1B cases, nightmare!!! The federal prevailing wage process is likely to result in delayed issuance of wage determinations. Most State Workforce Agencies (SWAs) currently accept and issue PWD requests electronically within 7 business days.

While OFLC is working on an electronic filing system for PWD requests, it remains uncertain as to when it will be implemented. In the meantime, the mailing procedure and overall implementation of this new process will lead to delays in the processing of wage determinations and consequently of PERM applications, which require that employers obtain a PWD prior to filing. This additional processing time should be factored into the preparation time for PERM applications, particularly for individuals nearing their last years in H-1B status.

So best advice, if you are thinking about PERM, file the PWD forms before the rules will take effect. We will keep you posted.

USCIS recently released an excellent FAQ about the visa wait times, and the reasons why it takes so long to immigrate under the preference system. I still think that with time, things will get even worse. In order to keep families from being apart for years, Immigration reform must address the visa backlog as well.

A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available.

The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Read more here....

The HIV ban removal will be remembered as a historic decision, through this final rule, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), amended its regulations to remove ``Human Immunodeficiency Virus (HIV) infection'' from the definition of communicable disease of public health significance and remove references to ``HIV'' from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

Immigrants for Whom the Regulation Applies

The provisions in 42 CFR part 34 apply to the medical examination of :

(1) aliens outside the United States who are applying for a visa at an embassy or consulate of the United States;

(2) aliens arriving in the United States; and

(3) aliens required by the U.S. Department of Homeland Security (DHS) to have a medical examination in connection with determination of their admissibility into the United States; and

(4) aliens who apply for adjustment of their immigration status to that of lawful permanent resident.

An Immigrant seeking permanent residence, whether through an immigrant visa or asylee status, or through an adjustment of status must undergo a medical examination to determine whether the alien is inadmissible on medical grounds. Aliens seeking admission as refugees also undergo medical examinations overseas. Overseas examinations are conducted by panel physicians designated by the Department of State.

Applicants for adjustment of status to lawful permanent resident are required to have a medical examination conducted by a civil surgeon designated by U.S. Citizenship and Immigration Services within DHS. Prior to this rule HIV infected applicants were barred from Adjusting Status unless a hardship waiver was filed. Only applicants with a qualifying US citizen relative could file for this waiver. Many same sex applicants without a qualifying relative, could not adjust status under the previous legislation. This change will bring a historic relief to thousands of applicants infected with HIV, that were not eligible for any waivers to adjust.

If you are an HIV intending immigrant, please consult an experienced immigration attorney about your options.

Continue reading "The HIV Travel Ban is now lifted - What Classes of Immigrants this Regulation Applies to?" »

A Blog reader called me the other day and wanted to know when his priority date will become current. His I-485 adjustment was filed in August 2007 when visas opened up for 30 days, and since that time retrogressed. The applicant is from India and like many others in his shoes is eager for answers. So how do visa numbers become available?

In order to approve an application for adjustment of status (I-485), there must be a visa number available in the particular category. This, in turn, depends upon the country of chargeability and the priority date of the case. Once the U.S. Citizenship and Immigration Services (USCIS) has reviewed a particular I-485 application, a request is submitted to the DOS for a visa authorization. If the USCIS makes the request for a visa number to the DOS when the priority date of a particular case is current, and an immigrant visa number is available, the authorization is transmitted and the USCIS can approve the I-485 application. This is all tracked through the DOS Immigrant Visa Allocation Management System (IVAMS).

If an immigrant visa number for a particular individual is requested from the DOS by the USCIS, but none is available, the request is moved to the "pending" file with the DOS. Data from this pending file is used by the DOS to calculate the appropriate cutoff dates for the backlogged categories in the Visa Bulletin each month.

Cases placed in the pending demand category are processed as immigrant visa numbers become available. The DOS communicates with the USCIS regarding the A numbers of the cases for which visa numbers have been authorized. These cases are then processed to completion and green cards are then issued by the USCIS.

As you can see, this is a very complicated and streamlined process, with actual visa numbers tracked, issued, and assigned to particular green card cases as part of the approval process. Clients often do not understand why they have to wait, sometimes years for visa numbers to open, even after USCIS approvals. We hope that both agencies will find a better way to talk to each other and make the Immigrant visa process and much smoother one.