Filing a Second PERM Labor Certification Application for the Same Employee

October 25th, 2016

In Matter of Allianz Global Investors of America, BALCA upheld the Certifying Officer’s (of the Department of Labor) denial where the employer filed two PERM applications for the same employee with substantially similar job duties, referring to 20 CFR§656.24(e)(6), which states that the employer is not allowed to have more than one labor certification pending for the same foreign worker in the same job opportunity.

The best practice when filing a second PERM for an employee in the same occupation is to first withdraw the first one (preferably online, it is quick and easy).

USCIS Publishes New Policy Manual on Hardship Waivers

October 25th, 2016

USCIS has updated his policy manual on extreme hardship waivers (Form I-601 and 601A), which is effective 12/05/2016.  These waivers are used to circumvent the three and ten-year bars to reentry into the US.  For some foreign nationals, the only way for them to obtain legal permanent residency in the US is to depart, obtain an immigrant visa abroad at a US Consulate, and reenter with an immigrant visa.  However, most will incur the three or ten-year bar to reentry (Section 212(a)(9)(B) of INA) upon departure.  In order to be able to reenter within this period, they may file a waiver based on extreme hardship to a qualifying relative (for one such waiver, this would include a US citizen or legal permanent resident spouse or parent).

The manual clarifies that for “hardship to qualify as extreme, it must involve suffering or loss that is greater than the hardship that usually results from denials of admission.”  It also counts hardship based on the relocation of the qualifying relative to the country where the alien will reside if denied entry into the US.

Immigration Filing Fee Increases for December 2016

October 25th, 2016

The Department of Homeland Security has issued a final rule with increases in filing fees for US immigrations applications and petitions.   The fee increases will take effect on December 23, 2016.  Applications mailed, postmarked or otherwise filed on or after 12/23/2016 must include the new fees.  The weighted average for the increase was 21%.

The filing fee for the Form I-485 application to adjust status increased from $985 to $1,140.  The filing fee for the Form I-130 petition for alien relative increased from $420 to $535.  With these increases, the total filing fee for one filing to adjust his or her status to legal permanent residency based on a family sponsor , including the biometrics fee of $85, is now $1,760.

Also, the filing fee for the Form N-400 to naturalize increased from $595 to $640, and with the biometrics fee of $85, the total filing fee to naturalize is now $725.

US Department of State Visa Bulletin for November 2016 and Future Projections

October 18th, 2016

According to Charles  Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, the following are his predictions for immigrant visa number movement from November 2016:

EB-1 China, EB-1 India, and EB-1 Worldwide:  These categories will remain current in November and for the foreseeable futureA retrogression of the EB-1 category is not expected for the first half of the fiscal year.

EB-2 Worldwide:  This category will remain current in November and retrogression is not expected in the foreseeable future. It is likely that EB-2 India will advance at a four month pace and that in November, EB-2 India will advance nine months to November 1, 2007. Also, it is predicted that numbers will continue to advance in this category for the foreseeable future.

EB-2 China:  This category moved forward by four months to July 15, 2012, and it is likely to reach at least September 2012 by February 2017.

EB-3 China:  This category advanced three months to April 15, 2013. EB-2 China was previously up to September 2012, and is likely to recover to that date no later than February 2017.

EB-5 China:  This category advanced two weeks, with a November final action date of March 8, 2014. Since this category was only temporarily reauthorized, absent congressional action prior to issuance of the December Visa Bulletin, the EB-5 China Regional Centers will most likely see it as “unavailable” for December. If that occurs, the DOS will provide guidance as to the final action date.

EB-4 El Salvador/Guatemala/Honduras:  This category advanced to July 15, 2015.  However, any forward movement in the final action date will be slow.

EB-4 India and EB-4 Mexico:  These categories remain current.

Advanced Degree EB-2 Status for Indian Foreign Nationals

October 4th, 2016

The general rule in obtaining legal permanent residency under the EB-2 “professionals with advanced degrees” (INA §203(b)(2)) is that the foreign national beneficiary must have an advanced degree (master’s or higher) or a single-source bachelor’s degree.  For those foreign nationals from countries with immigrant visa number backlogs such as India and China, filing under the EB-2 category (as opposed to the lower EB-3 category that requires a bachelor’s degree or two years of skilled experience), can mean obtaining legal permanent residency years faster.   There are many exceptions to this highly confusing and esoteric area of the law.

One of the exceptions regards the requirement of a single-source bachelor’s degree.  USCIS has approved EB-2 Form I-140 immigrant visa petitions where the beneficiary earned a three-year bachelor’s of science degree (as confirmed by EDGE/AACRAO educational standards system) and an ensuing post-graduate diploma (PGD) from a program accredited by the AICTE (All-India Council for Technical Education) from India at the time the PGD was earned.

Supreme Court Declines to Rehear Obama Immigration Case

October 4th, 2016

The US Supreme Court has denied the US Department of Justice’s request to rehear US. v. Texas, the case challenging President Obama’s executive action on Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA).  President Obama’s executive action was appropriate and the Court’s failure to reconsider the decision is legislation from the bench.

Immigration is a leading and contentious issue for Americans and the challenge to DAPA and DACA was a quintessential case to be reviewed by the Court.  Because of the failure to confirm a new Supreme Court Justice, and the ensuing 4-4 tie in voting on whether to rehear the case, key issues are going unaddressed and sowing confusion and division.