AILA’s Report on Trends for Visa Number Availability in the Visa Bulletin

October 31st, 2017

On October 16, 2017, Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the US Department of State, provided American Immigration Lawyers Association (AILA) with the following analysis of the current trends and projections for visa number availability for the various immigrant preference categories. These numbers are published in the Visa Bulletin each month.

Employment-Based Preference Categories

EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, all of these categories are expected to remain current for the foreseeable future.

EB-2 India. Consistent with Charlie’s predictions, EB-2 India will advance by less than one month for November to October 8, 2008.

EB-3 India. The final action date for EB-3 India will hold steady at October 15, 2006, for November, and Charlie is confident that this date will continue to hold in December.

EB-2 China and EB-3 China. Demand in these two categories is creeping along as expected. Charlie is interested in watching how the new USCIS interview requirement will impact demand in these categories and the downgrade phenomenon that has occurred for the past few years. In November, EB-2 China advances by less than one month to June 15, 2013, and EB-3 China advances by one month to February 1, 2014.

EB-3 Philippines. The final action date for EB-3 Philippines advances one and a half months to April 1, 2016, in November, consistent with Charlie’s predictions.

EB-5 China. The final action date for EB-5 China advances approximately one week to July 1, 2014, in November, consistent with Charlie’s projections.

EB-4. All EB-4 subcategories will remain the same in November with the exception of EB-4 Mexico, which will advance one month to April 1, 2016. Compared to the beginning of the last fiscal year, where Mexico, El Salvador, Guatemala, and Honduras were almost at their annual limits, the demand is starting out more slowly in these categories this year. Charlie expects to continue to advance EB-4 Mexico slowly, but he cautions members to not be surprised if the final action date for EB-4 Mexico rejoins that of EB-4 El Salvador, Guatemala, and Honduras later this fiscal year.
Charlie noted that in FY2017, Special Immigrant Juvenile (SIJ) applicants used over 50% of the annual limit for the EB-4 category, or more than 5,100 visa numbers. Of this number, El Salvador, Guatemala, and Honduras used over 1,100 visa numbers each.

Family-Based Categories

Movement in the family-based categories for November is consistent with Charlie’s predictions, with the final action dates of most categories either remaining the same or advancing modestly by about one month. FB-1 and FB-2B Philippines demand is starting to materialize. In particular, members should expect a correction to FB-1 in the December Visa Bulletin. Demand in FB-4 India is lower than expected, which might allow Charlie to advance the final action date in this category more quickly than previously anticipated.

MEMBER QUESTION #1: When does USCIS request and allocate a visa number to an individual case?

ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete, including conducting any required interview, receipt of a complete medical exam, all required clearances, etc.

MEMBER QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?

ANSWER #2: With regard to USCIS, though this is relatively rare, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer’s attention which impacts eligibility.
As another example, USCIS recently sent RFEs out on numerous EB-3 India cases which had been pre-adjudicated in anticipation that the final action date for this category would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year. Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to “pending demand” status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred of these cases, the final action date for EB-3 India is not currently advancing.

For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month (i.e. the case is placed in administrative processing), the number is returned to the Visa Office at the end of the month.

MEMBER QUESTION #3: In last month’s column, Charlie talked about avoiding a “drastic” retrogression of EB-3 China. Does this mean there is no hope of forward movement?

ANSWER #3: The reason that the final action date for EB-3 China was not advanced as much as might be suggested by the current rate of demand is because EB-3 China is likely to be hit with significant downgrade demand in the coming months. This is a pattern that has repeated itself over the past few years. Charlie intentionally did not advance the EB-3 China final action date too quickly in order to avoid a drastic retrogression later in the fiscal year. However, later this year, members can expect some additional forward movement in the EB-3 China category.

How to Serve as a Financial Sponsor on the Form I-864 Affidavit of Support for a Green Card Case

October 29th, 2017

A sponsor on any family-based immigrant visa petition for legal permanent residency (also known as the “green card”) must file a contract with the government known as the Form I-864 ‘Affidavit of Support’. This affidavit demonstrates that the beneficiary foreign national has adequate means of financial support and is not likely to become a public charge. The sponsor must meet tax filing and income or asset requirements and agree to potentially significant financial obligations under the contract.

The sponsor must have filed his or her Federal tax returns for the last three years, if required to do so. The total income noted on the last three filed tax returns must be noted on the Form I-864, but only the most recent Federal tax return (or IRS transcript), including all schedules and Forms W-2 and 1099s, must be filed.

By filing the Form I-864 Affidavit of Support, the financial sponsor must support the sponsored immigrant, if he or she is unable to support him or herself, at 125 percent of the federal poverty level for the sponsor’s household size based on the federal poverty guideline. The sponsor, or his or her household, must have a household income equal to at least 125 percent of the poverty level for his or her household size. One hundred and twenty five percent of the poverty level for a family of two in the contiguous United States is $20,300 (and an additional $5,225 for each additional household member). Income is determined by the sponsor’s total income noted on the most recently filed tax returns as well as by his or her current income. Also, if the sponsor is self-employed, his or her income may not be sufficient if not properly documented. If the income does not meet this standard then the assets or an affidavit of support from a joint sponsor can be used. Also, in certain instances the income or the assets of the sponsored immigrant may be used.

Only assets that can be converted into case within one year without considerable hardship or financial loss to the owner may be included. They must amount to five times the difference between the required income and the household income of the sponsor. In the case of sponsorship of a spouse, the assets must be three times the difference.

The joint sponsor must be at least 18-years-old who is a US citizen or legal permanent resident and who earns sufficient income for his or her household size or has sufficient assets. Household size is a specific legal term and is based on the number of certain family members living with the sponsor, dependents on his or her tax returns and the number of other immigrants sponsored pursuant to an I-864 that came into effect within ten years of the approval of the current immigrant visa or application to adjust status to legal permanent residency (I-485).

The sponsor’s obligation under the I-864 Affidavit of Support continues until the sponsored immigrant becomes a US citizen, can be credited with 40 qualifying quarters of work, departs the US permanently, or dies. Divorce does not terminate my obligation. In addition, the sponsor’s estate remains liable for repayment of benefits that arose before the support obligation ended.

Also, under the contractual obligations of the Form I-864 Affidavit of Support, the sponsor must support the sponsored immigrant financially and reimburse any government agency or private entity that provides the sponsored immigrant with Federal, State, or local means-tested public benefits. Agencies that provide means-tested benefits to intending immigrants will be able to sue the sponsor if he or she does not provide reimbursement for such benefits upon request. The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.

If any of the information on the Affidavit of Support is known by the sponsor to be false, he or she may be liable for criminal prosecution. The Government may pursue verification of any information provided on the form, including employment, income or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

The sponsor is required to report every change of my address to the US Citizenship and Immigration Service (“US CIS”) and the State(s) in which the sponsored immigrant resides, by filing Form I-865, Sponsor’s Notice of Change of Address, with the USCIS within 30 days of any change of address. Failure to give notice of any change of address may result in fines.

PERM Labor Certification Statistics Issued

October 25th, 2017

The US Department of Labor’s (DOL) Employment and Training Administration (ETA)/Office of Foreign Labor Certification (OFLC) issued selected statistics for its Permanent Labor Certification Program for fiscal year (FY) 2017. The PERM labor certification application is the first stage in most employment-based applications for legal permanent residency and requires the employer to obtain a prevailing wage determination, run recruitment and certify that there are no minimally-qualified, willing, able and available US workers for the position.

According to the DOL, for FY 2017, it received 105,034 applications, up 8% from 2016. The top five occupations of certified applications were as follows: (1) computer and mathematical (58%); (2) architecture and engineering (8%); (3) management (7%); (4)business and financial operations (6%); and (5) education, training and library (3%). The top five visa countries of citizenship of the foreign beneficiary were as follows: (1) India (55%); (2) China (9%); South Korea (6%); Canada (4%) and Mexico (2%). The minimum education requirements for 46% of the PERM applications were for advanced degree positions (master’s or a bachelor’s and five years of experience), 39% for a bachelor’s degree, 11% for less than a bachelor’s and 3% for all others.

Regarding the status of active PERM applications, 76% are under analyst review, 16% are under audit review, 6% are on appeal and 1% are under sponsorship/BE.

USCIS Rescinds Deference Policy for I-129 Extensions

October 24th, 2017

USCIS issued a policy memorandum on October 23, 2017, that abandons its long-held “due deference” policy for I-129 extensions, such as for H-1Bs, L-1As and L-1Bs. The policy memorandum rescinds the memorandum of April 23, 2004 titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015, policy memo titled “L-1B Adjudications Policy.” The memorandum is immediately effective and makes it very clear that petitioner has the burden of proof where an extension of nonimmigrant status is sought, and that the same level of scrutiny to both initial and extension petitions will apply, even where the parties and the facts have not changed from the original filing.

Obtaining Legal Permanent Residency Through the EB-1B Outstanding Researcher Petition

October 22nd, 2017

A foreign national may obtain legal permanent residence in the US as an outstanding professor or researcher through the employment-based first category (EB-1B). This process bypasses the PERM labor certification application, which is the usual first stage of an employment-based application for legal permanent residency (“the green card”) and thereby circumvents the requirements of obtaining a prevailing wage determination and running recruitment to determine if there are any minimally-qualified US workers. According to INA §203(b)(1)(B), in order for the beneficiary to be eligible for an immigrant visa (Form I-140) in this classification, the beneficiary must meet all of the following criteria:

1. Be recognized internationally as outstanding in a specific academic area;
2. Have three years of experience in teaching and/or research in that field; and
3. Be offered a tenure or tenure-track position at a university or other institution of higher education in the US to teach in the academic area; or in a comparable position conducting research in the academic area at a university or institution of higher learning; or in in the department, division, or institute of a private employer, which employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

The regulations further define the third prong stating that a research position may be tenured, tenure track or a permanent offer, that is, an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination. 8 CFR §204.5(i)(2). USCIS will accept evidence of permanency as the employer’s intent to indefinitely seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research).

The regulations at 8 C.F.R. 204.5(i)(3) define an alien as “internationally recognized as outstanding in a specific academic field” if the applicant can provide evidence of at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien’s work in the academic field;
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 allied field;
5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.

Furthermore, the Administrative Appeals Office (AAO) applies a two-step approach following Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) by first “counting” the evidence to see if it meets two or more of the necessary criteria and then considering the evidence as a whole.

Most foreign nationals filing as outstanding researchers provide the following documentation in support of their petition:

1. Recommendation letters from experts in the field;
2. Publications and presentations;
3. Citations to their work from Google Scholar;
4. Evidence as serving as a reviewer for journals or on an editorial board;
5. Competitive awards;
6. Membership in groups requiring outstanding achievement; and
7. Patents.

Since USCIS expects a scientist to have obtained much of this evidence, such as publications, presentations and citations, it is the recommendation letters that must be particularly strong and make the applicant shine. A letter from at least one objective recommender should be filed, to wit, an expert who has not taught, supervised or worked or studied with the foreign national. While the attorney cannot write the letter for the foreign national, she can certainly provide detailed and comprehensive and review the letters to enhance the foreign national’s track record.

It is also extremely important to write a clear, cogent and thorough legal memo in support of the petition, discussing each of the criteria that are applicable to the foreign national with great detail and care. Elucidating a scientist’s esoteric research and its practical significance in a way that presents the foreign national’s achievements as impressive while remaining clear to the lay person is also critical. USCIS does not have resident scientists with Ph.Ds. in different areas on staff reviewing these petitions and the petition is a form of marketing involving persuasion.

Federal Court Mostly Blocks Trump’s Third Travel Ban

October 18th, 2017

A Hawaii federal judge largely blocked the Trump administration’s third travel ban just hours before it was set to take effect against nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Judge Watson blocked the ban for six of the eight countries subject to it and upheld it for North Korea and Venezuela. He upheld the temporary restraining order for the six countries and found that Trump’s executive order exceeded the scope of his authority, lacked sufficient findings that the entry of foreign nationals from the banned countries would be detrimental to the US and suffered from the previous defect – that it discriminated based on nationality.

The third travel ban, issued under the executive order “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was based on the administration’s review of information sharing practices among the US and nearly 200 foreign nations to determine whether nationals of each country pose a threat to the national security or public safety of the US. It found that the following eight countries had been deemed to have inadequate management protocols and information sharing practices: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. It also determined that Iraq was not compliant but the order did not impose an outright ban on foreign nationals from Iraq but instead subjected them to additional screening measures. The foreign nationals from the other countries were subject to a diverse array of restrictions.

Legal Permanent Residency and the PERM Labor Certification Application

October 7th, 2017

The most prevalent avenue for a foreign national to obtain legal permanent residency in the US through employment involves the PERM labor certification process. There are two or three stages to obtaining legal permanent residency through this PERM labor certification process: (1) the PERM labor certification application (2) the immigrant visa petition; and (3) the application to adjust status or consular process abroad for the immigrant visa. The immigrant visa petition and application to adjust status may be filed concurrently in cases where a visa number is immediately available, thereby eliminating one step.

The foreign national is not allowed to make any payments for the PERM labor certification and the employer must exclusively incur all costs related to it. This includes the advertising fees as well as the attorney’s fees. Also, the employer engaged in the labor certification process will be prohibited from withholding from an alien’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process. The employer and/or the foreign national may pay for any and all costs associated with the second and third stages.

In the PERM labor certification stage, first the employer obtains a prevailing wage determination from the US Department of Labor (DOL) to ensure that it is offering the requisite prevailing wage. Then the employer advertises the position and responds to any U.S. applicants to the position. If no qualified, willing, able and available U.S. workers respond, then the employer files the PERM labor certification application (Form ETA 9089) with the DOL electronically (there are exceptions where paper filing is possible, but it is not recommended). The DOL may then certify the application or perform an audit to ensure that the employer has complied with the PERM recruitment obligations and/or to determine if there are no other deficiencies in the labor certification application, such as unduly restrictive requirements, or if any qualified applicants responded to the recruitment. During an audit, the DOL may also conduct supervised recruitment. The DOL initially predicted that it would take 45 to 60 days to process a labor certification application. However, the current processing times are approximately three months (and even longer for audited cases). It should also be noted that it takes around five months to prepare and file a PERM case.

If the DOL certifies the PERM labor certification application, then the employer proceeds to the second stage and files the immigrant visa petition. In support of the immigrant visa petition (Form I-140), the employer must submit evidence of its ability to pay the proffered wage as of the date of the filing of the labor certification application (priority date) and continuing up until the date of filing the I-140. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. An employer with more than 100 employees may submit a letter from the chief financial officer attesting to the company’s ability to pay the wage, although USCIS can request additional evidence.

Losses on a tax return does not necessarily hurt the company’s ability to show its ability to pay the wage. This is because USCIS will consider the payment of wages to the beneficiary as evidence of its ability-to-pay the wage. Therefore, even though the employer is not required to pay the beneficiary the wage offered on the PERM application until the final stage of the legal permanent residency process is approved, it is highly recommend that company pay the beneficiary the wage offered on the PERM application as of the date of filing the PERM application. If the company pays less than the wage offered on the PERM application, then it must show its ability to pay the difference through the evidence noted above (with the tax returns or annual report being the best evidence) or with secondary evidence (profit/loss statements, bank account records, or personnel records and other evidence of the company’s ability to pay the wage going forward). However, it should be emphasized that USCIS is not required to accept this secondary evidence.

In addition to the financial evidence, the employee must submit evidence that he or she met the minimum education and experience requirements at the time the labor certification application was filed (diplomas, transcripts, education equivalency evaluations, employment experience letters, etc.).

If an immigrant visa number is immediately available, then the employee may also file the application to adjust status to legal permanent residence (Form I-485), along with his or her spouse and children under 21. The worldwide level for annual employment-based preference immigrants is at least 140,000 and these numbers are divided equally among all countries. Since there is a far higher demand for visas for foreign nationals from India and China, this results in a tremendous backlog and wait for visa numbers for foreign nationals from these countries (which could be as much as approximately 10 years). The US Department of State issues a Visa Bulletin each month providing the dates that visa numbers become available (https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html).

Approximately three months after filing the application for legal permanent residence the employee may receive universal work authorization. Thus, if the foreign national’s current nonimmigrant status is expiring at this point, he or she could continue pursuant to the universal work authorization.

It usually takes approximately six months for the application for legal permanent residence and the immigrant visa petition to be adjudicated (although there have been isolated cases of approvals within several months). If it is approved, then the foreign employee must report to work for the sponsoring employer. There is no specified period of time during which the employee must remain with the sponsoring employer, although six months is a relatively safe period. Therefore, in summary, the employee can obtain legal permanent residence within fewer than two years should an immigration visa number be immediately available before filing the immigrant visa petition.

If there is a visa number backlog at the time the labor certification is approved, then the employer files the Form I-140 immigrant visa petition but the foreign national does not file for adjustment concurrently. Instead, he or she must wait for a visa number to become available. Also, once the labor certification or immigrant visa petition has been pending at least one year, even if it is not approved, the foreign national can obtain additional years in H-1B status (the primary nonimmigrant visa used by professionals to work in the US) beyond the initial six-year period until the application for permanent residence is finally approved.

Premium Processing Resumed for All H-1B Petitions

October 3rd, 2017

USCIS announced that as of October 3, 2017, it has resumed the premium processing for all H-1B petitions, including the conversion of pending petitions. On September 18th USCIS resumed premium processing of H-1B petitions subject to the cap and on July 24th it reinstated premium processing for H-1B petitions filed by cap-exempt petitions based on the Conrad 30 Waiver program and interested government agency waivers.

Premium processing expedites the adjudication of a petition and USCIS is required to provide a decision or request additional evidence within 15 calendar days. If it fails to meet this deadline then it must return the premium processing fee.

Premium processing is particularly important for the beneficiaries of pending H-1B extension petitions, since they are only granted 240 days of continued employment authorization after the expiration date of their most recent H-1B approval notice. They are allowed to remain in the US after this 240-day period if the H-1B extension petition was filed before their H-1B status expired, but their employment authorization terminates after this period.

It is not necessary for an H-1B petition to change employers to be approved before the beneficiary may work for the new petitioner. The beneficiary may work after USCIS receives the H-1B petition from the new employer pursuant to portability.

Diversity Visa Lottery Winners Sue over Travel Ban

October 3rd, 2017

The winners of the 2017 diversity visa lottery (DV) who are nationals of countries included in Executive Order 13780’s travel ban to the US filed a lawsuit challenging the Department of State’s (DOS) refusal to issue immigrant visas to them. (P.K. v. Tillerson, 8/3/17). The court denied the plaintiffs’ request to compel the DOL to process their visa application, but did issue an order requiring the DOS to hold any unused diversity visa numbers for FY2017 to process plaintiffs’ visa applications in the event the Supreme Court finds Executive Order 13780 to be unlawful. (P.K. v. Tillerson, 9/29/17)