Immigration
More on Employment-based Immigrant Visa Numbers
With only modest movement in the employment-based preference categories so far this fiscal year which began Oct. 1, 2018, the Visa Office had hoped that more dramatic forward movement in some of these categories would start in January. Unfortunately, the Visa Office does not have sufficient data to evaluate visa demand, and only modest forward movement was seen in the Bulletins for February as well as the March Bulletin published on Feb. 15. Even more important, USCIS decided that in February it would not accept adjustment of status applications based on the “Dates for Filing” as in recent past. Instead, for February USCIS requires the use of Final Action Dates for Employment based adjustment of status applications. We expect that USCIS will require Final Action Dates also for March. The following is an overview of the immigrant visa process and how backlogs work.
Overview of the Immigrant Visa Process: Most prospective immigrant visa applicants qualify for status under the law on the basis of family relationships or employer sponsorship. Entitlement to visa processing in these classes is normally established through approval by USCIS of a petition filed on the applicant’s behalf. Applicants whose petitions will be processed at an overseas post are forwarded by USCIS to the Department of State; applicants in categories subject to numerical limits are registered on the visa waiting list. Each case is assigned a priority date based on the petition’s filing date. Visa issuance within each numerically limited category is possible only if the applicant’s priority date is within the applicable “final action” dates, which are published each month by the Department of State in the Visa Bulletin. Family- and employment-preference applicants compete for visa numbers within their respective categories on a worldwide basis according to priority date; a statutory per-country limit on such preference immigrants places a maximum on the amount of visas that may be issued in a single year to applicants from any one country. This means that many categories become backlogged and people have to wait. On the family side, more than 3.6 million people wait for immigrant visas, the vast majority of which – 2.2 million – represent siblings of U.S. citizens. On the employment side, there are 140,000 visas issued annually. In those categories, the waits are much shorter, with some notable exceptions.
Recently, the Department of State asked the National Visa Center (NVC) to report the totals of applicants on the waiting list in the various immigrant categories. Because applications for adjustment of status are adjudicated and pend at USCIS offices and the NVC does not have information on them, those numbers are not included. This is significant because the majority of employment-based green cards are processed by USCIS and not by the NVC. Nevertheless, according to the NVC, the following provides a snapshot of some of the employment-based visa waits as of November 1, 2018: EB1 9,266; EB2 20,501; EB3 50,966.
For India born applicants in the Employment Based Preferences, the March 2019 Bulletin shows Final Action as follows: EB1- 22Feb17; EB2 - 09April09; EB3 - 22May09. Note that chargeability is by place of Birth, not Citizenship. Note also that it is possible to use the birth place of spouse if that produces a more favorable result.
USCIS exExpedite Process for H-1B Filings
Given the suspension of premium processing for many H-1B filings, employers who have an urgent need that demands prompt adjudication of their H-1B petitions can request an expedite. USCIS, however, will only expedite a petition if it meets one or more of the following expedite criteria:
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Severe financial loss to company or person;
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Emergency situation;
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Humanitarian reasons;
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Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
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Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government);
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USCIS error; or
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Compelling interest of USCIS.
An expedite can be requested with the initial filing or after the petition has been filed. This is a workaround that employers should consider in the right circumstance.
USCIS to Eliminate Self-Scheduling InfoPass Appointments
USCIS wants to eliminate the way in which customers can use InfoPass. Currently, in most jurisdictions, an individual who wants to discuss his or her case with an immigration representative can make an appointment online through the InfoPass system, assuming an appointment is available. But appointments have become harder and harder to obtain and often are unavailable for weeks on end. To solve this problem, USCIS instituted its Information Services Modernization Program, which involves the elimination of self-scheduling InfoPass appointments and requires individuals to first contact the USCIS Contact Center. Under the Information Services Modernization Program, if it is determined that an applicant needs in-person assistance, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots. Based on surveys and other data, USCIS determined that most people who made in-person information service appointments through InfoPass could have received the same information by calling the USCIS Contact Center or checking the USCIS website.
After piloting the Information Services Modernization Program in March 2018, USCIS expanded the new system to the Detroit Field Office and five offices in the Los Angeles District, and will continue expansion to field offices in Newark, the Great Lakes, and the San Francisco districts. USCIS anticipates expanding the program to all remaining field offices by the end of FY2019 (i.e., 9/30/2019) to completely remove self-scheduled InfoPass appointments.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]