Unofficial Predictions from the Visa Office

This information is courtesy of the American Immigration Lawyers Association. (AILA InfoNet Doc. No. 12012349 (posted Nov. 27, 2013)

During a recent conversation with Roberta Freedman, AILA Students & Scholars Committee member, Charlie Oppenheim of the Department of State’s Visa Office provided the following information and updates regarding demand in the employment-based immigrant visa categories. Please note that these notes are based on Mr. Oppenheim’s impressions at the time and are subject to change based on usage or new developments.

  • As of November 20, 2013 no additional EB-2 numbers will be allocated for EB-2 India adjustment of status applications for the rest of November. This means that no additional EB-2 India green cards can be approved with a priority date after November 2004 (the December Visa Bulletin’s cutoff date), even though the November Visa Bulletin had not yet retrogressed. The November Visa Bulletin confirmed that as soon as retrogression was announced for December, it could take effect immediately.
  • The demand for India EB-2 visa numbers has been unprecedented. In fact from the 10th to the 20th of November, the Visa Office received requests for approximately 150 EB-2 India green card numbers per day from USCIS. The demand was so great, that the unusual action of cutting off the category during the month had to be taken. A majority of these requests were from “upgrades” where the beneficiary had established a priority date in the EB-3 category, and now qualified for EB-2.
  • It is very possible that in August or September 2014, the last two months of the 2014 fiscal year, EB-2 India will advance again to around December 2008. However, that is only an educated guess at this time. No exact date is certain.
  • In the last fiscal year, close to 15,000 EB-2 visa numbers were allocated to pending EB-2 India cases in August and September 2013, for cases that were pre-adjudicated by USCIS.
  • A number of factors will affect the forward movement of the category and the availability of extra visa numbers, for India EB-2 and other categories, between now and the end of the 2014 fiscal year:
    1. Usage of visa numbers in the EB-1 category that would “drop down” to EB-2;
    2. The number of EB-3 to EB-2 “upgrades” from Worldwide and other countries;
    3. The number of EB-2 India visa numbers used for applicants with priority dates before November 2004; and
    4. The fact that the total worldwide quota is about 8,000 visa numbers lower than the previous year.
  • The Worldwide EB-3 category moved forward a year in December because there does not appear to be very many of these applications currently pending with USCIS. As demand builds over the fiscal year, and more conclusions can be drawn from the number of pending cases, the EB-3 Worldwide category may retrogress during this fiscal year.

On Wednesday, October 23, 2013, Mr. Charlie Oppenheim spoke to the Washington D.C. Chapter of AILA. Below are notes from that meeting. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

  • His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
  • India EB-3 will continue to move very slowly.
  • Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
  • Worldwide EB-2 is expected to remain current.
  • Worldwide EB-1 is expected to remain current.
  • China EB-2 will continue to move slowly.
  • China EB-3 is expected to continue to be ahead of a China’s EB-2 priority date. Applicants are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)

For more information on the Visa Bulletin, priority dates and re-filing in EB-3, please contact Valentine Brown at 215 979 1840.

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New E-Verify SSN Safeguard May Be More Harm than Help

On Monday, November 18, 2013, USCIS Director Alejandro Mayorkas announced the release of a new E-Verify enhancement designed to combat identity fraud. The enhancement is designed to detect and prevent the fraudulent use of Social Security Numbers (SSNs) to gain work authorization by enabling USCIS to lock an SSN within the E-Verify system if it appears to be misused. Once the SSN is locked, E-Verify will generate a Tentative Nonconfirmation (TNC), and the employee receiving this TNC will have to contest the finding at the local Social Security Administration field office. Once a Social Security field officer confirms the employee’s identity and matches the SSN, the TNC will be changed to “Employment Authorized” status in E-Verify.

While this solution seems like a reasonable fix for one of the glaring deficiencies in E-Verify, it could also pose significant problems for the true owners of the Social Security Numbers that get locked. As anyone who has been a victim of identity theft and all it entails knows, there is no quick resolution to an identity theft problem, especially when the Social Security Administration is involved. When encountering this situation, employers must be vigilant and remember that no adverse employment action may be taken against an employee while a Tentative Non-Confirmation remains unresolved.

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Compliance Week: Immigration Compliance Audits Hit Record High Levels

In this November 19, 2013 article by Jaclyn Jaeger for Compliance Week, I discuss the importance of internal I-9 compliance, including centralizing a company’s I-9 function, and conducting internal audits.  Read the full article:immigration-compliance-audits-hit


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December Visa Bulletin Update, EB-2 for India Retrogresses

The employment-based second preference category is current for all countries of chargeability, except India and China. December will have a retrogression of India EB-2 applicants to a cutoff date of November 15, 2004, in large part due to the rapid advancement of the India EB-2 cutoff dates in the past several months. Further retrogression is possible, since the demand for visa numbers is exceeding the available supply. The EB-2 cutoff date for China advanced by a month, to November 8, 2008. In the December 2013 Visa Bulletin, EB-3 cut-off dates for all countries of chargeability, China, and Mexico advances by a full year, to October 1, 2011. The cutoff date for the Philippines moves forward to January 8, 2007. India’s EB-3 cutoff date retrogresses by a few weeks to September 1, 2003, and Philippines’ cutoff date only advanced by a few weeks.

Due to the likelihood of retrogressions, it is important to do everything possible to submit adjustment of status applications in the first mnonth of visa availability. If you need assistance with your adjustment of status application please call Valentine Brown on 215 979 1840.

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New Policy provides Pathway to Green Card for Families of Service Members

The U.S. Citizenship and Immigration Services (USCIS) has released a policy memorandum addressing the parole of spouses, children and parents of active duty members of the U.S. Armed Forces, members of the Selected Reserve of the Ready Reserve (including the National Guard) or veterans who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve. Generally, a parole is granted, under Immigration and Nationality Act § 212(d)(5)(A), as a discretionary status for someone to enter the United States for “urgent humanitarian reasons or significant public benefit” to an alien applying for admission to the United States. These paroles have only been granted “sparingly” until now. The new USCIS memorandum provides instead for a parole in place (PIP) and that, absent a criminal conviction or other serious adverse factors, the government can use its discretion to permit the spouses, children and parents of military members or veterans to now remain in the United States.

The practical effect of this policy change is the ability of these close family members of active or former members of the Armed Forces, who entered the United States without inspection or who have overstayed their visas, to now be able to apply for permanent residence (i.e. green cards) while physically present inside the United States – after the PIP has been granted. As a result of this new policy, they will not be required to travel back to their home country for this process, and no waivers for unlawful presence will be required.

This is an amazing development and wonderful benefit for a well-deserving group of US Citizens and Legal Permanent Residents. The fact that those who have served our country no longer have to deal with the intricate difficulties faced by undocumented family members is a testament to USCIS’ ability to use its discretionary powers to do the right thing. Thank you Director Mayorkas and staff!

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Are you really too old for DACA? by Patrick Taurel of American Immigration Council

In a great blog post from October 24, 2013, Patrick Taurel of the American Immigration Council’s Immigration Impact blog writes, “It is past time to clear up an oft-repeated misconception about President Obama’s deportation deferral program called Deferred Action for Childhood Arrivals (DACA): it is simply not true that individuals must be under 31 to be eligible for DACA. Any individual born after June 15, 1981 is within—and shall remain within—DACA’s age requirements. Only individuals who were 31 years old or older on June 15, 2012 are ineligible for DACA. The age requirements apply to initial applications as well as renewals, and one of the only things we know about renewals is that no one will age out. As a result, there currently are individuals in their early thirties who are eligible for DACA, and assuming the program continues on, over time, greater numbers of DACA recipients will be over 31. Yet, some news articles and even flyers for legal clinics mistakenly assert that people under 30 or 31 don’t qualify—this gets the age ceiling wrong and also implies that individuals can age out of eligibility.”

For the full blog post click here:

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SHUTDOWN Impact: USCIS, DOL, E-Verify, Consulates & More

Applications and Interviews: U.S. Citizenship and Immigration Services (USCIS) Is Not Affected

USCIS operations are fully funded by application fees paid when applications are filed, so the agency is not affected by federal budget negotiations. As a result, all USCIS operations including the four service centers and all local offices are up and running under normal conditions. All visa petitions and green card and naturalization applications will continue to be adjudicated, and all scheduled green card and citizenship interviews will be held.

PERM; H-1B Labor Condition Applications and Prevailing Wages Suspended: New PERM, Prevailing Wage and Labor Condition Applications Will Not Be Accepted or Processed During the Shutdown

As of noon on October 1, 2013, the iCERT portal and PERM websites were disabled. Notices indicating that they will be closed until the government is reopened are posted instead. This means that employers may not submit, print out, check status on or receive approved applications of the following:

• PERM Labor Certifications;
• Labor Condition Applications (required for H-1B and E-3 visa applications); and
• Prevailing Wage Determination.

The impact of this on employers and foreign nationals will depend on how long the shutdown lasts. Processing of all applications will be delayed, and processing times will lengthen since no work is currently being done by Department of Labor (DOL) employees in the above-referenced applications.

DOL has not indicated if any concessions will be made for employers with expiring recruitment or prevailing wages, such that the inability to file a PERM application during the shutdown period would cause severe economic and other hardships to employers.

Similarly, employers unable to file Labor Condition Applications or to receive Labor Condition Application approvals from DOL for H-1B workers with expiring H-1B status may also be negatively impacted. Their employees may go out of legal status in the United States. DOL has made no announcements regarding contingency plans in this regard. Depending upon how long the shutdown lasts, it is conceivable that USCIS may allow H-1B applications to be filed with proof of a pending Labor Condition Application in order to address the problem of expiring status documents.

Visa Interviews Abroad: Anticipate Delays

U.S. consular operations overseas will remain operational as long as there are sufficient funds to support them. That means the State Department will keep processing foreign applications for U.S. visas and passports and providing services to U.S. citizens overseas as long as it can. The State Department will apply a furlough to locally employed staff. This reduction in staff will likely cause delays in visa processing, and these delays could lengthen over time. Visa interviews could be shut down altogether if funding is not allocated soon. It may be worthwhile to schedule visa appointments sooner rather than later if travel dates are not fixed.

TN and Other NAFTA Applications at the Border: Anticipate Delays

Inspection and law enforcement personnel are considered “excepted,” so the ports of entry will stay open. However, staffing may be limited, and delays are anticipated at certain ports of entry. Visa status determinations made at the ports of entry (e.g., TN) should continue, though it is foreseeable that there will be delays.

New Social Security Number Applications Suspended

Though the Social Security Administration (SSA) will remain open during the shutdown, it will not be accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards. Employees do not need an SSN to start work, but not having an SSN could affect their ability to obtain a U.S. driver’s license, open a bank account and obtain other benefits.

All E-Verify Operations Are Suspended

The E-Verify website and all customer service functions are closed and unavailable. While E-Verify is unavailable, it will not be possible to access E-Verify accounts. As a result, it is not possible to enroll, verify employment eligibility or make any changes to an E-Verify account.

Because the customer service function is closed, employees will be unable to resolve Tentative Nonconfirmations (TNCs). In addition, all webinars and training sessions are cancelled until further notice, and E-Verify Self-Check is unavailable.
USCIS has implemented the following temporary policies for E-Verify users during the government shutdown:
• The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. It will provide additional guidance once it reopens. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
• The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count toward the eight federal government workdays the employee has to go to the SSA or contact the Department of Homeland Security (DHS). It will provide additional time once it reopens.
• Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (It may be worthwhile to consult the E-Verify User Manual for more information on interim case statuses).
I-9 Enforcement Actions

The majority of Immigration and Customs Enforcement employees are considered to be essential for “safety of human life or protection of property,” so it is likely that officers will continue to be on duty. Those in the midst of an audit should still comply with all required deadlines and may want to contact their investigating officer to determine if any extensions are available.

I-9 Enforcement Action Appeals

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines. For employers that are planning to appeal a Notice of Intent to Fine for I-9 violations, they must adhere to the 30-day deadline. The government shutdown has not affected this requirement.

Customs and Border Protection and Immigration and Customs Enforcement

DHS designates about 86 percent of its more than 200,000 employees as “essential” for the “safety of human life or protection of property.” As a result, employment will continue as usual for most Customs and Border Protection employees, airport screening officers, U.S. Secret Service agents and others in passenger processing and cargo inspection at ports of entry and in the detention of drug traffickers or undocumented immigrants.

Immigration Courts

Immigration courts nationwide are continuing to adjudicate cases where foreign nationals are being detained, and all court functions that support the detained caseload will continue. Cases for non-detained foreign nationals are being canceled and will be rescheduled once the government returns to normal operations
Board of Immigration Appeals (BIA)
BIA is processing emergency stay requests, as well as cases where the foreign national is detained, including case appeals, motions, federal court remands and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status. The BIA Clerk’s Office staff is accepting all filings and will be open Monday through Friday, from 8:00 a.m. until 4:30 p.m.

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