|
October 11, 2005 immigration news update
Click for a Printable Version of this Article
October 11, 2005 immigration news update 1. Impact of Priority Date Retrogressions Expected to Be Severe 2. Questions and Answers about Backlogs and Priority Dates for Employment-based Green Cards 3. New Diversity Visa Registration Now Through December 5 4. VSC Delays in H-1B Processing 5. Fee Increases Take Effect October 26 6. DOL Backlog Reduction Centers Continue Work 7. DOL Releases Updated Compliance Assistance Tool 8. J-1 Doctor Approved for Hardship Waiver in Less Than Two Months 9. The Firm Speaks 10. Immigration Processing Times Links 1. Impact of Priority Date Retrogressions Expected to Be Severe As warned in last month's newsletter, multi-year backlogs in the third employment-based (EB) immigrant visa categories have hit, with most countries backlogged to March 1, 2001, and EB-3 applicants from China and India backlogged even further. The first and second employment-based preference categories for Chinese and Indian nationals have also retrogressed: the cut-off date for EB-1 ( Because waits for employment-based green cards now could run into several years, the timing of green card applications has become especially important. A failure to begin the process early could create serious problems later. The ability to extend H-1B status is still possible, however, based on the date when the green card application process (either the labor certification or the I-140) is filed. This means that the retrogression does not affect one's ability to maintain nonimmigrant status. Also, H-1B portability is still permitted even during periods of retrogression. Green card applicants usually are charged to the numbers available for their country of birth, regardless of current citizenship. There are a few exceptions, however. The most common is the ability to be charged to the country of birth of an accompanying spouse. For example, a principal applicant born in See the October 2005 Visa Bulletin for the latest priority dates: http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html. 2. Questions and Answers about Backlogs and Priority Dates for Employment-based Green Cards Q: What do the employment-based immigrant visa (green card) backlogs mean? A: They mean the green card process will take longer. The process may take 6 or more years for some applicants. This time estimate is counted from the establishment of a priority date through approval of a green card. Q: What is a priority date? A: It's the date of filing of the first step of a green card application. This is done by filing a labor certification of any kind (RIR, Special Handling, standard or PERM) or in the labor certification-exempt categories, by filing Form I-140. Q: If I filed a green card application (I-140 and I-485) before the backlogs took effect October 1, 2005, will I get a green card more quickly? A: No. You will still wait up to 6 years depending on your filing category for green card approval. However, since your I-485 is already pending, you enjoy two advantages: 1) EAD or work permit eligibility during the pendency of the I-485; and 2) portability of your green card application once the I-485 has been pending for more than 180 days. Q: Is my green card portable if I haven't filed my I-485 yet? A: No, with some exceptions. To file an I-485, your priority date must be "current," meaning your date of filing precedes the published "priority date" in your immigrant visa category. If you can't file an I-485 yet, then you can't get a work permit and your green card application is not portable, generally. Portability without filing of an I-485 exists for: 1) all national interest waiver (NIW) applicants filed in non-Health Professional Shortage Areas (HPSAs), whether or not employer sponsored; 2) HPSA NIW applicants following completion of the three-year J service obligation; and 3) all EB-1-1 (extraordinary ability) applicants. Q: Can I still go ahead with a green card application? A: Yes. Labor certifications ( Q: What if my labor certification is at a A: That can be a good thing! Having an older priority date, say from 2002 or 2003, is beneficial. Don't lose track of that application. Once the BEC approves your application, which could take another year or so, you will have already waited several years of your quota delay and thus will be "ahead" in the green card queue of those applicants starting more recently. Older priority dates are now very valuable! Q: What can I do to speed up my green card process? A: If you already have a pending application, don't give up on it! You'll need that earlier established priority date. Hence, in most cases, filing a If you have an older filed case, consider applying again in a HIGHER category. This is because EB priority dates can be shifted among the EB 1, 2 and 3 green card categories. For example, if you have an RIR pending since 2003 in the EB-3 category, but now you have a master's degree, consider filing a second green card application in the EB-2 category. For applicants born in Note: Not all graduate degree holders may be eligible to file in the EB-2 category. To be eligible, the job for which the labor certification is filed must require a master's degree. Also, you may not be able to use the graduate degree as a requirement if you started work in the position at a time when you did not have a graduate degree. If you are starting a green card application now, apply in a category having a shorter backlog. If you are an investor with substantial capital, consider an EB-5 immigrant investor green card. If you are eligible for the EB-1-1 extraordinary ability or EB-2 national interest waiver categories, apply here. If you are a L-1 multinational transferee, seek an EB-1-3 managerial/executive green card classification. If you are married to someone from another country, take advantage of cross-chargeability to claim your spouse's quota delay for yourself, if it helps. For example, an Indian married to a Brit is cross-chargeable to the "worldwide" quota instead of the Q: How do I stay work-eligible in the A: H-1B's are protected against long green card waits in two ways: 1) if you have a pending labor cert, filed before the end of your 5th year of H time, you can extend your present H in annual increments, indefinitely, and until approval of your I-140; 2) if you have an approved I-140 and are prevented from filing an I-485 due to green card backlogs, you can extend your H in three year increments, until your priority date is reached. Other temporary visa holders should consider switching to H to take advantage of these extension provisions. L-1B visa holders in particular should consider switching to H-1B. Q: How can I learn about green card categories and visa availability? A: Check the State Department's monthly Visa Bulletin to watch for progress on backlogs: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html Check our firm website and newsletters for more information about green card filing criteria: http://www.millermayer.com/newsletter 3. New Diversity Visa Registration Now Through December 5 The Department of State announced that registration for the 2007 Diversity Visa (DV) lottery began at noon on October 5, 2005. Online registrations only will be accepted via submission of an Electronic Diversity Visa Entry Form (EDV Entry Form) at http://www.dvlottery.state.gov from noon on October 5, 2005 through noon on December 4, 2005. Paper and mail-in registrations will not be accepted, and multiple registrations for the same person will disqualify that applicant. Photos are required and must be submitted electronically. Persons submitting entries will receive a notice of receipt and a time/date stamp. There is no fee, and a signature is not required. To qualify, applicants must have either a high school education or equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience. The Department of Labor's O*NET will be used to determine qualifying work experience. Applicants will be selected at random by computer. Those selected will be notified by mail between May and July 2007, and will be provided further instructions. Persons not selected will not receive any notification. DV-2007 visas will be issued between October 1, 2006, and September 30, 2007. For DV-2007 instructions, a comprehensive list of qualifying and nonqualifying countries, and additional details on the requirements for DV applications, see http://travel.state.gov/visa/immigrants/types/types_1318.html and http://www.state.gov/r/pa/prs/ps/2005/53629.htm. 4. VSC Delays in H-1B Processing The Vermont Service Center (VSC) of U.S. Citizenship and Immigration Services has been experiencing extreme delays in processing H-1B visa petitions. Until early April the VSC reported that it was processing H-1B petitions in under eight weeks. In April, it became clear that processing H-1Bs was taking far longer. The VSC has been stuck on H-1B petitions with a receipt date of April 30, 2005 for the past month, which means many workers who expected to have an employment start date of October 1 were not be able to start work on time, as their petitions were not yet approved. Keep in mind that premium processing is still available for all H-1B petitions. For an extra fee of $1,000, premium processing guarantees processing within 15 calendar days, or USCIS will refund the fee. 5. Fee Increases Take Effect October 26 Immigration filing fee increases, adding an average of $10 to each application, will take effect for applications or petitions filed on or after October 26, 2005. The smallest increase is $5; the largest is $20. Filing fees for appeals have also increased, going from $110 to $385 for appeals filed with the Administrative Appeals Office. U.S. Citizenship and Immigration Services said the fee increases are being implemented due to inflation. The notice, which includes a table showing the current and new fees, was published in the Federal Register on September 26, 2005, and is available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-19226.pdf. 6. DOL Backlog Elimination Centers Continue Work The total number of old labor certification cases forwarded to the Department of Labor's backlog elimination centers is roughly 345,000. In addition, there are still cases waiting in the The backlog elimination centers have been working on reduction in recruitment and traditional cases where recruitment was completed previously and no further recruitment was required. Although they are not yet ready to process cases that will require recruitment, in the coming months they will be preparing to work on these cases and to deal with all related issues, such as prevailing wage and job orders. 7. DOL Releases Updated Compliance Assistance Tool 8. J-1 Doctor Approved for Hardship Waiver in Less Than Two Months True, Walsh & Miller recently received approval of a J-1 waiver for a doctor based on the grounds that having to return to his home country would cause extreme hardship to his We argued that a hardship waiver was justified because as mentally gifted children, the doctor's children require extra academic, emotional and psychological attention. They could not receive the extra emotional attention if their father was away for two years. Nor could they afford the extra academic and psychological care they need in the The approval for the J-1 waiver came in just under two months of the receipt date for the application and with no requests for evidence. This was incredibly fast for processing a hardship waiver application. If you think you qualify for a J-1 waiver, please contact one of the members of our immigration group for a consultation. For more information on J-1 waivers, please see the U.S. Department of State website: http://travel.state.gov/visa/temp/info/info_1288.html. 9. The Firm Speaks Steve will give a talk on visa options after graduation in the Hollis E. Cornell auditorium in Goldwin Smith Hall at Steve and Hilary Fraser will give two talks in Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. 10. Immigration Processing Times Links Follow these links to access current processing times of the USCIS Service Centers: https://egov.immigration.gov/cris/jsps/index.jsp Department of Labor: http://www.ows.doleta.gov/foreign/times.asp Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html _____________________ That's it for this issue. Some of the information in this issue comes from the American Immigration Lawyers Association. Thanks to AILA for allowing us to reprint their information. Some of the information in this issue also comes from the Academy of Business Immigration Lawyers (ABIL). Steve Yale-Loehr is a founding member of ABIL. ABIL's website is: http://www.abil.com/ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com) Carolyn Lee (mailto:csl@millermayer.com) Rosie Mayer (mailto:rma@millermayer.com), or Steve Yale-Loehr (mailto:syl@millermayer.com).
|