Visa Lawyer Blog

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In a bulletin released on September 11th the United States Citizenship and Immigration Services explains conditions relating to prioritization of interview scheduling for affirmative asylum applications. According to CIS, affirmative asylum applications began to be prioritized as of December 26, 2014 which fall under the below mentioned categories.

The categories which qualify for prioritization of interview scheduling include:

  1. Applicants who were scheduled for an interview, however the interview was rescheduled at the request of the applicant or by CIS (applicants in this category are normally scheduled promptly)
  2. Applications that were filed by children (applicants in this category are normally scheduled promptly)
  3. Pending affirmative asylum applications will be prioritized in the order they were received by CIS (first come first serve basis)

Pending affirmative asylum applications:

The following table outlines processing times for  interview scheduling by field office. The table estimates interview scheduling for applicants in the third category.

*Approximations are based on interviews scheduled during the listed month. Future estimations are determined by asylum office caseload and resources available to each office.

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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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The American Immigration Lawyers Association will be hosting a free workshop on September 19, 2015 at various sites around the country.  The workshop will be providing assistance to lawful permanent residents who are eligible for naturalization. Each year, at sites across the country, AILA attorneys and other stakeholders provide assistance to lawful permanent residents eligible for naturalization.  Last year, AILA and its partner “ya es hora ¡Ciudadanía!” held more than 50 naturalization clinics in 22 states and the District of Columbia serving thousands of immigrants who aspired to become citizens. We will provide more updates to our community as they become available. For more information about the event please contact AILA’s Pro Bono department probono@aila.org.

Please click here for:

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In order to alleviate the workload received by the Vermont Service Center, USCIS recently announced that some cases normally processed at the Vermont Service Center will be transferred to the California Service Center. Cases that may be affected include I-130 petitions for alien relatives and I-751 petitions to remove the conditions on permanent residence.

For cases that are transferred to the CSC, USCIS will issue applicants a receipt notice confirming the transfer of their application. The transfer notice will include the date of transfer and the new location where the application will be processed. The receipt number identifying your application will remain unchanged. There may be a slight delay in the processing time for cases that are transferred to a new location.

CIS has clarified that the filing location for I-130 and I-751 applications will remain the same and applicants should continue to follow the form instructions before filing their applications with CIS.

Applicants can check the status of their applications by navigating to the CIS website and entering their receipt number in the Case Status Online system. Applicants are also encouraged to continue to check the processing times published on the CIS website for the California Service Center or by calling the National Customer Service Center at 1-800-375-5283. If your application is outside of the normal processing time you should submit an e-Request inquiry on the CIS website or by calling the NCSC. When submitting the e-Request by telephone you must have your receipt number on hand and notify the customer service representative that your application has been transferred to a new location.

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It is our pleasure to provide our readers with newly released statistics published by the Department of Labor’s Office of Foreign Labor Certification concerning the processing status of the PERM program and Prevailing Wage Determinations. The PERM graphic provides a breakdown for the review of applications certified during FY 2015 by the top 5 occupations, site states, industries, visa classifications, countries of citizenship, and minimum educational requirements. The graphic concerning the National Prevailing Wage Center outlines the determinations requests received for the H-1B program H-2B program, and PERM program FY 2015, breaks down prevailing wage actions, and issuance of prevailing wage determinations for PERM top 5 employers and occupations, H-1B top 5 employers and occupations, and H-2B top 5 employers and occupations.

PERM Graphic

Prevailing Wage Graphic

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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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By Yingfei Zhou, Esq.

On July 21, 2015, USCIS issued the final guidance on when an employer must file an amended or new petition when the H-1B employee has changed or is changing his or her job location.

Except the situations listed below, the general requirement is that an employer must file an amended or new H-1B petition if the H-1B employee has changed or is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location. Once an employer properly files the amended or new H-1B petition, the H-1B employee can immediately begin working at the new place of employment. The employer does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new location.

Exceptions when an employer does NOT need to file an amended petition are as follows:

  1. A move within an “area of intended employment”: If an employer’s H-1B employee is simply moving to a new job location within the same metropolitan statistical area, a new LCA is not generally required, and without material changes in the terms and conditions of employment the employer does not need to file an amended or new H-1B petition. However, the employer must still post the previously obtained LCA in the new work location.

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We would like to inform our readers that on July 21, 2015 the Department of Homeland Security issued a policy memorandum which provides guidance to employers and H-1B applicants regarding when to file an amended or new H-1B petition following the case law, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).

The memorandum is important because it is used to guide all determinations made by USCIS employees including adjudication procedures effective immediately.

To read the complete memorandum please click here  USCIS Policy Memorandum

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DACA Update

On July 15, 2015 USCIS announced that it mistakenly issued approximately 2,100 employment authorization cards to DACA recipients that were printed with a three-year validity period instead of a two-year period, following a court injunction prohibiting USCIS from doing so.

To correct the error, USCIS sent these recipients a notice of intent to terminate deferred action and employment authorization. The letter describes that the three year employment authorization cards received after the injunction, are no longer valid and must be returned to USCIS by July 27, 2015 due to a federal court order Texas v. United States, which prohibits USCIS from issuing deferred action for a period exceeding 2 years.

USCIS also issued about 500 three year EAD cards to DACA applicants who were approved before the court order was enforced. These cards had been returned to USCIS as undeliverable by the United States Postal Service and were re-mailed to an updated address after the injunction went in effect on February 16, 2015. Due to this, these 3-year EAD cards are also deemed invalid.

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By now you may have heard that on the morning of June 26, the Supreme Court of the United States ruled in a landmark 5-4 decision (Obergefell v Hodges) that same-sex couples have a constitutional right to marriage, a right that cannot be denied by the laws of any state.

Prior to the ruling, same sex couples could only be married in 36 states and the District of Columbia. Marriage equality for same sex couples has been a controversial subject for decades, making the ruling all the more historic.

In 2013 the Supreme Court made a similar ruling which declared the Defense of Marriage Act (DOMA) unconstitutional. DOMA was initially enacted by Congress in 1996, defining marriage as the union between a man and a woman. DOMA essentially barred the federal government from recognizing same-sex marriages. Despite the ruling, the rights of same sex couples continued to be abridged by individual state laws. Even after DOMA was declared unconstitutional, many conservative states continued to deny same sex couples the right to marry. Due to this, thousands of law suits flooded into the courts to settle the issue once and for all. One of these suits was brought to court by Jim Obergefell, a widower demanding that his legal marriage to his partner of 21 years, be recognized in his state of residency, the state of Ohio. The June 26th SCOTUS decision has now put the debate to rest, though a long journey still lies ahead.

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