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Archive for the ‘Green Cards’ Category
Wednesday, April 3rd, 2013
When considering the prospects of new immigration legislation from Congress aimed to modernize the system or address legalizing the millions of individuals out of status over the past few years, many of us have felt like Charlie Brown trying to kick a field goal. Time and time again we’ve been disappointed when Lucy pulled the ball away.
Discussion of immigration reform has been incessant since the last “major” revision to the Immigration and Nationality Act in 1996. The first version of the DREAM Act was introduced in Congress in 2001, but despite reintroductions and revisions, it has never made it to the Oval Office for signature. Six years later, the Comprehensive Immigration Reform Act of 2007 was introduced in the Senate but failed to materialize support to bring about an up-or-down vote. Indeed, for the past decade, only relatively minor piecemeal legislation and Executive Branch policies revising enforcement priorities have been the headline-grabbing changes to the system.
But this year (and this Congress) is shaping to be quite different.
News broke Friday night that the AFL-CIO and the Chamber of Commerce reached a deal on a new relatively lower-skill “guest worker” visa, presumptively dubbed the W-visa. Led by the so-called Senate bipartisan “Gang of Eight,” the two constituent groups have reached a preliminary deal which allows workers the opportunity to receive employment-authorized visas without depressing U.S. workers’ wages. For years the lack of a consensus as to a visa category which allows those to take jobs in the service industries and agriculture – which some say is a major driver of illegal immigration – has stymied comprehensive reforms notwithstanding a broader consensus on legalization and increased enforcement.
The agreement reached by the two groups sets forth the following general provisions:
- The volume of W-visas will be capped, yet fluctuate from year to year in response to the economy. The first year, slated to begin in 2015, will cap W-visas at 20,000. The numbers will then increase to 35,000 in the second year, 55,000 in the third, and 75,000 in the fourth.
- In the fifth year, the number of W-visas will be capped at a maximum of 200,000 but the actual number available to employers will be determined by a new Bureau of Immigration and Labor Market Conditions, relying upon on labor market data. For instance, if economic indicators are weak, there could be as few as 20,000 W-visas in any given cycle.
- Similar to the H-1B, W-visa employers will need to comply with wage restrictions that require them to pay the greater of 1) the actual wages paid by an employer to U.S. workers with similar levels of experience in similar positions, or 2) the “prevailing wage” determined by the Department of Labor for the occupational category in question.
- However, unlike the H-1B, the W-visa is not temporary, but transitional. Beneficiaries will have the ability to self-petition for Green Cards after a year. Furthermore, the W-visa will not be tied to a single, discrete employer, allowing workers to leave abusive businesses.
- W-visa workers will be protected by state and federal employment laws. W-visa beneficiaries cannot be used by employers who have laid off workers within the preceding 90 days, and those enduring a strike or lockout.
This new agreement, forged in principle between two groups which historically have not seen-eye-to-eye, evidences a strong break in past failures to bridge the gap between organized labor and business on this hot-button issue.
Politicians from both sides of the aisle have expressed optimism that comprehensive legislation will soon be introduced. On Sunday, Senator Chuck Schumer (D-NY) told NBC’s Meet the Press that he is “very, very optimistic” that the group of lawmakers will have a deal this week and that legislation could be introduced as early as the next. Another Member of the Gang of Eight, Senator Lindsey Graham (R-SC), told CNN’s State of the Union that “[C]onceptually, we have an agreement between business and labor, between ourselves.”
But don’t pop the champagne quite just yet. Members have cautioned that while there may be an emerging agreement for the basic principles behind Comprehensive Immigration Reform, legislation has still yet to be drafted. Senator Marco Rubio (R-FL) cautioned to the Associated Press that “[A]rriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 43 states that weren’t part of this initial drafting process.”
Posted in Agency Updates, Green Cards, Hot Questions, News & Politics, Temporary Visas | Click Here To Comment »
Friday, March 16th, 2012
The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. Klasko, Rulon, Stock and Seltzer has also learned that the Visa Control Office of the State Department is predicting a retrogression of priority dates in the India and China EB-2 category, effective in the May or June Visa Bulletin, to a 2007 priority date. It is not expected that the EB-2 category for natives of “All Other” countries will be affected.
Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed, or for a pending application to be approved. As of March 1, 2012, that priority date has been set at cases with a labor certification (or EB-2 I-140 not requiring a labor certification) filed prior to May 1, 2010 for natives of India and China. The Visa Control Office rapidly advanced the priority dates in order to build an “inventory” of cases ready to be approved at the USCIS offices, and those cases will now be processed by USCIS between now and the end of the government’s fiscal year, September 30.
For the month of April, the Visa Bulletin holds the priority date for India and China EB-2 steady at May 1, 2010. For May, the Visa Control Office recently announced that they expect the priority date will “retrogress” or be set earlier, possibly as early as August of 2007. This retrogression will mean that new applications for adjustment of status will not be able to be filed after April 30, 2012 for cases with priority dates in 2008, 2009 and early 2010. Priority dates are not expected to advance again until October 1, 2012, at least, when the government’s new fiscal year begins.
It is very important to note that if an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again. Since the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, during the time the priority date is retrogressed.
Due to this recent announcement, we recommend that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so by late April, as their opportunity to file the application will likely end as of May 1, 2012, and will not return until at least October 1, 2012 (and likely much later).
Tags: EB-2, Green Cards, immigrant visa numbers, Visa Retrogression Posted in Green Cards | 2 Comments »
Monday, March 12th, 2012
In a recent decision, Matter of Mercer University, the Board of Alien Labor Certification Appeals (BALCA) – the Department of Labor’s appeal body – adopted a flexible approach to determining who qualifies for optional special recruitment. This type of recruitment under the PERM regulations can be performed when an employer is preparing to file a labor certification for an employee qualifying as a “college or university teacher,” and is completed under the different standard of having to demonstrate that the foreign national on whose behalf the labor certification is being filed, was the “best qualified” of all the candidates.
BALCA reviewed this case after it was by the Certifying Officer because he did not believe that the position in question, a librarian position titled “Instructional Coordinator,” included teaching responsibilities. Specifically, in the decision denying the Application for Permanent Labor Certification , the certifying officer found that “the principal duties described [were] not those involved in teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” Mercer University, however, argued that its requirement that the instructional coordinator “participate in instruction activities” clearly referred to “college and university teaching” job duties needing to be performed in this position. Additionally, Mercer University argued that there has never been a requirement setting forth the minimum amount of teaching duties to be performed in order for the position to qualify for optional special recruitment under the PERM regulations.
BALCA reviewed the job duties of the position, as well as the documentation prepared by Mercer University prior to the filing of the Application for Permanent Labor Certification. Upon completing this review, BALCA found that the responsibilities of teaching were clearly reflected in the job duties of the position as well as the employer’s education and experience requirements, and that the documentation contained in the labor certification file clearly described the foreign national as having teaching responsibilities. Finally, BALCA agreed with the employer and stressed that the regulations lack any requirements of “special definitions” to describe the position or duties of college or university teacher. BALCA further noted that the Application for Permanent Labor Certification clearly set forth that teaching responsibilities were part of the job duties of the Instructional Coordinator with Mercer University. In so finding, BALCA reaffirmed the long held belief of institutions of higher education, and immigration law practitioners, that in order to qualify for optional special recruitment under the regulation, the position must involve any amount of teaching with a college or university.
Posted in Agency Updates, Green Cards | Click Here To Comment »
Saturday, December 17th, 2011
Two weeks ago, I reported on a bill that passed the House of Representatives and would have helped addressed the severe delays faced by natives of India and China in the employment-based second and third preference visa categories (EB-2 and EB-3).
Yesterday, Senator Grassley, R-IA, informed the Senate that he was placing a “hold” on the Senate’s consideration of HR-3012. Such a hold greatly complicates the ability of the Senate to pass the bill, as it is a warning that the Senator would filibuster the bill if it came to the floor.
You can read my thoughts on the bigger picture at AILA’s Leadership Blog, but it’s enough to note that for now, the bill is effectively dead unless other Senators can convince Senator Grassley to remove his hold.
Tags: EB-2, Green Cards, immigrant visa numbers Posted in Green Cards, News & Politics | Click Here To Comment »
Thursday, June 9th, 2011
Sometimes, being a little off is not a bad thing.
Last month, we held to our prediction that EB-2 dates for China and India would advance to late 2006, perhaps January 2007, before this September. While technically correct, the State Department yesterday released its July 2011 Visa Bulletin indicating a much steeper acceleration: the India/China cutoff date has leapt to March 8, 2007 (up from this month’s October 15, 2006 date).
| Employment- Based |
All Charge-ability Areas Except Those Listed |
CHINA- mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
08MAR07 |
08MAR07 |
C |
C |
| 3rd |
08OCT05 |
01JUL04 |
01MAY02 |
01JUL05 |
08OCT05 |
| Other Workers |
22NOV04 |
22APR03 |
01MAY02 |
22NOV04 |
22NOV04 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs |
C |
C |
C |
C |
C |
Another surprise found in next month’s bulletin is that the date for EB-3 Other Workers has advanced from November 8, 2003 to November 22, 2004. Recent Visa Bulletins offered no indication that such a major leap was coming. For those who remember, around this time two years ago all EB-3 advancement came to a standstill.
For the past two Bulletins, the State Department has offered some commentary explaining the acceleration in EB-2 China/India categories by attributing advancement to unused EB-1 allocation. In the May 2011 Bulletin, the State Department predicted that because increasing amounts of Chinese/Indian EB-3 applicants have been “upgrading” to EB-2, less than a month’s advancement was to be expected for either country through July. Clearly, the dates have been advancing at a much faster rate. This month’s bulletin offers no commentary explaining the sudden acceleration or predictions for future cut-off dates through the summer.
Although some may optimistically argue that the movement for China/India EB-2 is beginning to form a pattern, it is not certain whether this acceleration in priority dates will be sustained or whether dates will retrogress in the coming months. Stay tuned.
Tags: Agency Updates, EB-2, immigrant visa numbers Posted in Agency Updates, Green Cards | Click Here To Comment »
Thursday, May 12th, 2011
The State Department has released its June 2011 Visa Bulletin. As was the case last month, we again see a significant advance on EB-2 priority dates for China and India.
Employment-
Based |
All Chargeability Areas Except Those Listed |
CHINA-
mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
15OCT06 |
15OCT06 |
C |
C |
| 3rd |
15SEP05 |
15MAY04 |
22APR02 |
22DEC04 |
15SEP05 |
| Other Workers |
08NOV03 |
22APR03 |
22APR02 |
08NOV03 |
08NOV03 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs |
C |
C |
C |
C |
C |
Whether this acceleration in priority dates will be sustained in the coming months remains to be seen. The State Department explains that there is an increased demand by applicants “upgrading” their category from EB-3 to EB-2, which could potentially stymie the advancement of EB-2 priority dates. Nonetheless, the impact of this increased EB-2 demand has so far been minimal. The State Department cautions that priority date cut-offs for upcoming months cannot be guaranteed and therefore no assumptions should be made. At this time, we make no changes to our prediction that decreased EB-1 applications and approval rates should advance Chinese and Indian EB-2 priority dates to late 2006, and perhaps to January 2007, by September of 2011.
Tags: Agency Updates, Green Cards, immigrant visa numbers Posted in Agency Updates, Green Cards | Click Here To Comment »
Wednesday, April 13th, 2011
The State Department has released its May Visa Bulletin. As we predicted, India and China Eb-2 moved forward for the month:
| Employment- Based |
All Chargeability Areas Except Those Listed |
CHINA- mainland born |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
01AUG06 |
01JUL06 |
C |
C |
| 3rd |
22AUG05 |
15APR04 |
15APR02 |
08SEP04 |
22AUG05 |
| Other Workers |
08SEP03 |
22APR03 |
15APR02 |
08SEP03 |
08SEP03 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
5th
Targeted Employment Areas/ Regional Centers and Private Programs |
C |
C |
C |
C |
C |
The State Department said it would be able to release an extra 12,000 visas for processing in EB-2 this year because of USCIS reporting low demand (and low approval rates) in EB-1. The “extra” numbers that “spill down” to EB-2 from EB-1, plus the regular ones (about 2300 each for India and China), should get the priority dates to late 2006, and perhaps to January 2007, by September of 2011. Continue to monitor the Visa Bulletin each month for updates.
Tags: Agency Updates, Green Cards, Visa Retrogression Posted in Agency Updates, Green Cards | Click Here To Comment »
Friday, April 1st, 2011
While the USCIS numbers of pending I-485 make me relatively pessimistic on movement for India and China EB-2, the State Department’s internal case management staff are feeling more optimistic. In fact, we are seeing the National Visa Center issue fee bills for EB-2 India immigrant visa files with priority dates as late as November 2007, which would seem to indicate that NVC, at least, thinks the visa numbers will move at least that far ahead this year.
A caveat against reading too much into the NVC action: recall that it was imperfect information-sharing between USCIS and the State Department that led to the July 2007 “Visagate” debacle, and NVC likely has a small minority of the overall number of visa petitions with India and China EB priority dates in 2006 and early 2007, since so many of those beneficiaries could file for adjustment of status in July of 2007.
It’s also possible that NVC is simply trying to get cases set up with fees paid and documents submitted in case the numbers stay current for the rest of the fiscal year – but applicants would lose their filing fees if the numbers retrogress later this year.
We will have to wait for the May Visa Bulletin from the State Department, likely released by April 13 or so, for more detailed information on the State Department’s thinking.
Tags: EB-2, Green Cards, immigrant visa numbers Posted in Agency Updates, Green Cards, Hot Questions | Click Here To Comment »
Friday, April 1st, 2011
Earlier this week, Kate reported that the State Department said it would be able to release an extra 12,000 visas for processing in EB-2 this year because of USCIS reporting low demand (and low approval rates) in EB-1. What does that mean for possible movement of priority dates this year? Some people have reported across the internet that the EB-2 China/India backlog may disappear. Unfortunately, the numbers don’t bear that out.
The last pending I-485 inventory number released from USCIS said that, as of January 2011, there were about 5,000 pending I-485s for EB-2 China with priority dates earlier than January 1, 2007, and there were about 14,000 pending I-485s for EB-2 India with priority dates earlier than January 1, 2007.
So, the “extra” numbers that “spill down” to EB-2 from EB-1, plus the regular ones (about 2300 each for India and China), should get the priority dates to late 2006, and perhaps to January 2007, by September of 2011.
While that is still better than no movement at all, it is far from being current.
Tags: Agency Updates, EB-2, Green Cards, visa backlogs Posted in Green Cards, News & Politics | Click Here To Comment »
Tuesday, March 29th, 2011
As a result of a reduction in the use of EB-1 immigrant visa numbers, Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State stated that:
“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”
Clients whose priority dates will become current will be eligible to proceed with their adjustment of status or consular immigrant visa applications.
Tags: EB-2, India, Visa Backlog Posted in Agency Updates, Green Cards | 3 Comments »
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