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.

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).

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.

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.

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.

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.

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.

“[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.

1) As long as I visit the United States at least once every six months, I’ll be fine; or

2) If I leave for any length of time, I’ll put my status in jeopardy.

The actual rules are much more complex and nuanced, but fortunately, can often be used correctly to maintain status for significant periods of residence abroad.

The two most important rules for permanent residents to know are 1) abandonment can be an issue at any time, even where the permanent resident visits the United States each six months; and 2) CBP at the airport cannot actually “take away” permanent resident status (though they can try to cajole/pressure the permanent resident to give it up voluntarily).

If you are planning any significant time overseas, please review our Green Card Holder’s Guide to Travel, Residing Abroad and Preventing Loss of Permanent Resident Status, or have a consultation with one of our lawyers.

In any case, we do now have the final Kazarian memo and I can see why it was hiding.  Whereas the E-1-1 RFE template contains a clear articulation of the regulatory criteria and the evidence that should be provided to establish each criterion, the Kazarian memo suggests that even “objectively meeting the regulatory criteria” does not demonstrate that you’ve met the criteria.  As examples, it states that “publishing scholarly articles…regardless of the caliber, should satisfy the regulatory criteria in part one.  However for the analysis in part two, the alien’s publications should be evaluated to determine whether they were indicative of being one of a small percent of the top of the field.”  It applies this same logic to judging the work of others, and ostensibly, to all the other regulatory criteria as well.

The interesting thing about this ‘new’ section of the Adjudicator’s Field Manual (AFM) is that it is pretty much the same as the ‘old’ section of the AFM.  The old section also centered on the idea that each criterion has to independently demonstrate extraordinary ability, a position that was repeatedly rejected by federal courts.   See e.g. Buletini v. INS, Gulen v. Chertoff, Muni v. INS, and Racine v. INS. 

The ‘new’ AFM, however, takes this even one step further.  Even if it is successfully demonstrated that the beneficiary objectively and subjectively meets three criteria, immigration adjudicators are instructed that they can dismiss all of this evidence, if “when considering the petition in its entirety” they believe the beneficiary is nevertheless not extraordinary.   There are no defined standards that adjudicators must follow to make this all important determination; rather, it seems to be in their individual discretion.  Concepts such as due process and fundamental fairness seem to be gone, as objective evidence is rejected in favor of “I’ll know it when I see it”.

Employment First:  Current

Employment Second: 
Worldwide: Current
China and India:  March or April 2006

Employment Third:
Worldwide:    June through September 2004
China:        October through December 2003
India:        February 2002
Mexico:       Unavailable
Philippines:  June through September 2004

Employment Fourth: 
Worldwide:  It may be necessary to establish a cut-off date for September.

Employment Fifth:  Current