State Department Releases April 2010 Visa Bulletin

The U.S. Department of State has issued the April 2010 Visa Bulletin.  The good news is that the numbers show immigrant visa retrogression going in the right direction.  But this good news is tempered by the modest gains.

The first preference category (EB-1) remains current for all countries.

The second preference category (EB-2) remains current for all countries, except for India and China.  EB-2 India did not move at all.  It stayed put at February 1, 2005.  This is troubling because we had been seeing slow-but-steady positive movement in this category.  While the unchanged date only signifies a 1-month retreat, it ends the steady positive advancement.

EB-2 China moved forward by one and a half months, from July 8, 2005 to August 22, 2005.  This movement is very similar to the movement we have seen over the past few months.  While the general direction of the movement is beneficial, it is certainly not significantly helpful.  Indeed, the movement has only been slightly better than month-to-month.

The EB-3 category experienced similar modest gains.  For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, retrogression was cut back by one and a half months, from December 15, 2002 to February 1, 2003.  EB-3 India did the best this month, moving more than 2 months, from July 1, 2001 to September 8, 2001.  For the second straight month, EB-3 Mexico remained unchanged at July 1, 2002.

The April 2010 Visa Bulletin can be viewed at:  http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

Ninth Circuit Court Rules Against USCIS’s Arbitrary RFE Thresholds

Yesterday, the Ninth Circuit Court of Appeals ruled against the U.S. Citizenship and Immigration Services (“USCIS”) in a case brought by the American Immigration Council challenging certain thresholds adopted in an EB-1 Extraordinary Ability immigrant petition case (Kazarian).  USCIS issued a request for evidence (“RFE”) and later denied the case.  In citing the basis for denial, USCIS stated that the petitioner had not sufficiently established that the beneficiary’s publications had received acclaim from the research community.  This standard is not required under the law.

The Ninth Circuit Court held that USCIS may not implement substantive or evidentiary requirements above what is established in the regulations.

The immigration community has seen an increase in requests for evidence over the past couple of years, including numerous instances in which novel and arbitrary standards have been listed in RFEs.  Perhaps this decision will send a message and reduce the incidence of such burdensome RFEs.  Although most cases are ultimately approved, it can create a significant hardship on petitioners/applicants and immigration practitioners to respond to requests that go beyond what is required under the law.

U.S. Department of State Issues March Visa Bulletin

The U.S. Department of State has issued the March Visa Bulletin very early this month.  The good news is that the numbers show immigrant visa retrogression going in the right direction.  But this good news is tempered by the modest gains.

The first preference category (EB-1) remains current for all countries.  The second preference category (EB-2) remains current for all countries, except for India and China.  EB-2 India moved forward one week, from January 22, 2005 to February 1, 2005.  EB-2 China moved forward by one and a half months, from May 22, 2005 to July 8, 2005.

The EB-3 category experienced similar modest gains.  For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, there was nearly a 3-month move, from September 22, 2002 to December 15, 2002.  EB-3 India moved one week, from June 22, 2001 to July 1, 2001.  EB-3 Mexico remain unchanged at July 1, 2002.

The March 2010 Visa Bulletin can be viewed at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

USCIS Updates Power of Attorney Signature Policy

The U.S. Citizenship and Immigration Services (USCIS) had previously issued a signature policy memorandum that would require signatures by an authorized company representative on all forms and letters for cases filed by the company.  This would remove a company’s ability to have forms and letters signed by outside counsel pursuant to a power of attorney letter.

For now, companies can continue to have forms and letters signed by authorized outside counsel, as USCIS has temporarily withdrawn its recent policy memorandum that would have required that signatures come from company representatives.  However, USCIS is expected to reissue a revised memorandum with future implementation date in the near future.

State Department Releases February 2010 Visa Bulletin

The U.S. Department of State has released the February 2010 Visa Bulletin.  The monthly visa bulletin is a mathematical projection of immigrant visa availability for the coming month, based on recent data related to the number of immigrant visa applications.  In February, priority date cutoffs for the EB-2 China category will advance modestly, with the new date of May 22, 2005. In the EB-3 preference category, cutoff dates will advance approximately seven weeks for China and Worldwide (September 22, 2002), but will not advance for India or Mexico.

All other categories will remain unchanged from the current January 2010 bulletin.  As expected, the EB-1 preference category remains current for all countries.

If you wish to view the February 2010 Visa Bulletin, visit: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

DOL Clarifies Questions on New National Prevailing Wage

The U.S. Department of Labor (DOL) has issued guidance to clarify some questions that have arisen due to the new centralized prevailing wage system for labor certification, which took effect as of January 1, 2010.  Perhaps the most concerning news in this update is related to the anticipated processing time.  The DOL indicated that processing times for the issuance of a prevailing wage determination could be lengthy, and recommended that they be done at least 60 days in advance of initial recruitment efforts.  The protracted processing time for prevailing wage determinations will further lengthen an already extensive recruitment period.

USCIS Confirms H-1B Numbers for FY2010 Have Been Exhausted

The U.S. Citizenship and Immigration Services (USCIS) issued confirmation that the FY2010 H-1B cap was reached as of December 21, 2009.  This means that a sufficient number of cap-subject H-1B petitions have been filed with USCIS to meet the statutory limitation of 65,000.  Any petitions received on December 21st will be subjected to a computer-generated random lottery process.  Any cases received after December 21st will be rejected.

With the surge of H-1B filings in October, the advanced U.S. degree cap of 20,000 had already been used up.  This is a reversal of the normal trend wherein the regular H-1B cap of 65,000 is nearly always exhausted before the advance U.S. degree set aside.

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