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Articles Posted in National Visa Center

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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The December visa bulletin was recently released by the DOS on November 9, 2015. For the month of December CIS has announced that family based applicants must use the ‘date of filing’ chart to determine when their adjustment of status applications may be filed. This means that for family based preference categories, there are presently immigrant visas available and demand has not yet been met for the fiscal year. Employment based applicants must refer to the ‘final action date’ chart as a basis for applying for adjustment of status. This means that presently there is more demand than immigrant visas available for employment based categories. For the month of December, filing dates have remained unchanged. The impact of the dual chart system will not be felt until CIS requests visa numbers from the DOS in April 2016 for adjustment of status filings based on the October Visa Bulletin. In this post we will discuss new announcements that have appeared on the December visa bulletin and projections for EB-2 India, EB-2 and EB-3 China, F-2A, and F-2B. These projections are based on guidance provided by the Chief of the Visa Control and Reporting Division, Charles Oppenheim. While they do not guarantee actual immigrant visa availability, these projections are helpful reference points.

Replacement of Foreign Affairs Manual (FAM) and New Visa Waiting List

The December visa bulletin has announced that the Foreign Affairs Manual (FAM) used internally by the Department of States will be replaced with 9 FAM-e beginning November 18, 2015. Public release of the new FAM has not yet been announced.

Additionally, a ‘Visa Waiting List’ will be released beginning with the January Visa Bulletin which will provide applicants information on the National Visa Center waiting list starting November 1, 2015.

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In this blog we are answering 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office.

Qualifying for 245i and Adjustment of Status

Q: My ex-husband filed an adjustment of status application on my behalf based on 245i. We separated before we received our initial interview appointment and later divorced. I have since remarried. Can my husband apply for my permanent residence now that we are married?

A: Thank you for your question. Certain individuals who have a qualifying relative willing to file an immigrant visa petition on their behalf, are eligible to adjust their status under 245i Immigration and Nationality Act if they entered the country without inspection (unlawfully) and were the beneficiary of a visa petition or application for labor certification filed on specific dates outline below. Before proceeding with a new green card application, you should make sure you qualify for 245i and have all of the necessary documents to prove your eligibility. 245i applicants must provide documented evidence of their physical presence in the United States and evidence that the visa petition or application for labor certification was filed on their behalf by providing the receipt notice of the petition also known as the I-797 Notice of Action.

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Photograph taken at Ellis Island

Further changes have been made to the November Visa Bulletin published earlier this month by the Department of State. The dual chart system remains in place including the ‘final action date’ chart and ‘date of filing’ chart. So what has changed? USCIS has become more involved in the application process for family-sponsored and employment-based immigrant applications since the introduction of the date of filing chart. A disclaimer has now been added to the November Visa Bulletin above the date of filing chart which instructs applicants to visit the USCIS website for more instructions on how and when the chart is to be used. USCIS has created this new web page to notify applicants whether they can proceed with applications for permanent residence based on the date of filing chart published monthly on the Visa Bulletin. The website will be updated within about a week of the publication of the Visa Bulletin every month. The webpage is intended to provide applicants information in regards to visa availability for family-sponsored and employment-based immigrant visas for each fiscal year, letting applicants know whether the filing date chart is enforceable. So far, USCIS has indicated that the filing date chart for October and November 2015 is enforceable.

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Last week, we reported to our readers that on September 25th the Department of State and USCIS re-issued the October Visa Bulletin and changed the date of filing chart drastically, rolling back the ‘Dates of Filing’ for heavily used visa categories, including employment based and family-sponsored petitions. The American Immigration Lawyers Association, along with policymakers, and immigration advocates, are urging Congress, the White House, USCIS, and Department of State to restore the initial dates of filing that were authorized and released on September 9th 2015 with the October Visa Bulletin.

If you would like to pressure the government to honor the initial dates of filing, released on September 9th, we invite you to sign the White House petition by clicking here. We must hold the government accountable for their actions by advocating for the restoration of the initial dates of filing. With the release of the October Visa Bulletin, the DOS introduced a dual chart system for the first time in history which included a new ‘date of filing’ chart. The new date of filing chart would have allowed thousands of foreign nationals to file their adjustment of status and employment authorization applications, before a visa became available to them. This action was made by the DOS in an effort to modernize and streamline our immigration system as part of President Obama’s Executive Actions on Immigration announced on November 20th of last year. Due to the recent drastic changes that have been made to the date of filing chart, we encourage you to become involved by signing the petition or writing to your local Congressman/Congresswoman. Thousands of foreign workers and family members of foreign nationals have been impacted by the recent changes, given that the majority of applicants who would have been eligible to file for their green card applications and employment authorization cards, will no longer be able to do so. They must continue to wait until their priority date becomes current on the date of filing chart.

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As some of you may have heard, on September 25th the US Department of State made some additional changes to the October 2015 Visa Bulletin. These changes include new and earlier date of filing cut-offs than those initially released on September 9th. The date of filing chart released on September 25th will replace the prior one released on September 9th. To view the complete changes please click here. These new changes have raised several concerns for our readers.

What caused the visa numbers to be re-issued after their release on September 9, 2015?

Though we cannot ascertain the exact reasons why these changes have come about, we can make the fair assumption that these changes were likely due to workload concerns and a lack of resources necessary to accommodate the large amount of adjustment of status applications expected to be filed beginning October 1st. The anticipated workload may have given the Department of State no choice but to retrogress the visa numbers in heavily used categories.

Is the Department of State reneging on their promise to modernize and streamline the immigration process as part of Obama’s executive actions on immigration?

While it is disappointing that the visa numbers on the ‘date of filing’ chart have retrogressed, a departure from the promised executive actions does not seem to be the case. The visa numbers have been adjusted in an effort to streamline the immigration process in a way that is viable, practical, and effective. Dates of filing have been adjusted for family-sponsored and employment-based preferences to create a practical timeline that provide CIS the sufficient time needed to process the large volume of anticipated adjustment of status applications.

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On September 9th the Department of State and USCIS jointly announced new procedures that will allow family-based and employment-based applicants stuck in immigrant visa backlogs to apply for an immigrant visa (adjustment of status) before their priority date becomes current and an immigrant visa becomes immediately available to them. These new procedures will be implemented beginning October 1, 2015 as part of President Barack Obama’s executive actions on immigration with the purpose of modernizing and streamlining our legal immigration system for the 21st century. These new changes were introduced in the October Visa Bulletin. 

What is the Visa Bulletin?

The Department of State publishes a monthly report of visa availability known as the ‘Visa Bulletin.’ The Visa Bulletin is essentially a guide to be used by applicants and consular officials denoting visa availability for the issuance of visas at consulates and embassies worldwide. USCIS utilizes the Visa Bulletin to determine whether Form I-485, Application to Register Permanent Residence or Adjust Status, can be accepted for filing and processing. In order to file Form I-485 a prospective immigrant must determine whether a visa is available to them at the time the Form I-485 is filed and at the time Form I-485 is approved. The Department of State and Department of Homeland Security work together to revise the Visa Bulletin on a monthly basis estimating immigrant visa availability for prospective adjustment of status applicants. The DOS allocates available visas by providing visa numbers according to the prospective immigrant’s preference category, country of birth and priority date. This allows distribution of visas for all preference categories. A prospective immigrant’s priority date can be found on Form I-797 Notice of Action or ‘Receipt Notice’ for the petition filed on the applicant’s behalf.

What is a Priority Date?

A priority date is generally defined as the “date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS.”  For employment-based petitions, “if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.”

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National Visa Center Blunders

On July 30th the National Visa Center sent out a notification confirming reports that applicants had been receiving letters or emails from the NVC on July 29, 2015. These letters and/or emails stated that applications would be terminated or that their applications were in the process of being terminated under INA 203(g) for failure to contact the NVC within a year of receiving a notification of the availability of a visa, even if the individual or their legal representative had been in contact with the NVC during the one-year period.

The NVC is taking action to resolve these issued and will send all affected applications a follow up email confirming that their applications are still in process.

Upcoming Congressional Topics on Immigration

On August 4, 2015 the U.S. Senate Committee on Homeland Security and Governmental Affairs will be discussing challenges facing the federal prison system

On August 6, 2015 the U.S. Senate Committee on the Judiciary will hold an Executive Business meeting on the Stop Sanctuary Cities Act and Transnational Drug Trafficking

DOL Power Outage

The Department of Labor Website will be experiencing a power outage from Friday 7/31/15 to Sunday 8/2/15 with service returning on 8/2/15.

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Presently, attorneys Jacob Sapochnick, Esq., Ekaterina Powell, Esq., and Yingfei Zhou, Esq. from our office are in attendance at the 2015 American Immigration Lawyers Association (AILA) Conference on Immigration Law taking place in Washington, DC. Together, they have had the privilege of being present for an open forum where officials from the Department of State and the National Visa Center provided valuable information in regards to modernization of PERM, improvements in visa processing at the National Visa Center, technical issues experienced at U.S. Consulates abroad, H-1B fee announcements, and more!

Technical issues experienced at U.S. Consulates worldwide

1. In regards to technical issues causing delays in visa issuance at U.S. Consulates worldwide, visa issuance is currently frozen. No visas are currently being issued at any U.S. Consulates worldwide. U.S. Consulates are rescheduling appointments for visas that were affected by the technical issues. The DOS is working to repair the hardware, however it will not be until next week when all issues will be resolved. Due to this, there will be a backlog for visa issuance and it will take longer to schedule a consular appointment for a visa.

2. If a visa applicant was affected by the technical issues at a U.S. Consulate abroad and they need to retrieve their passport urgently, they will be able to retrieve their passport, however, in doing so, applicants will forfeit the visa fees they have paid, and will be issued a 221(g) visa denial letter. If applicants are still interested in receiving a visa, they must re-apply and re-pay any visa fees. Applicants who are re-applying must note on future applications that their visa was denied due to a technical glitch. Applicants from visa waiver countries who are concerned that the visa denial will automatically result in an ESTA denial can rest assured. ESTA submissions will not be denied based on the technical glitch. DOS has responded that the technical issues will not affect future visa applications. Continue reading