USCIS Updates Case Processing Times

Today, the four USCIS regional offices have issued updated processing times.   On the employment-based immigrant visa side, the major changes in the current report are primarily with I-140 and I-485 processing times. In May, USCIS reported that the Nebraska Service Center[i] was processing most I-140 petitions in 4 months and that the Texas Service Center was taking about 8.5 months.[ii] According to today’s report, I-140s are now taking 6 months in Nebraska and about 10 months in Texas.

While Texas’ processing time on I-140s has drifted, it has improved significantly on its processing of I-485s. Instead of the 9-month processing time reported in May, the Texas Service Center is now reporting a 4 months to a final decision. Nebraska continues to process I-485 applications in 4 months.[iii]

Applications for EAD work authorization and Advance Parole travel authorization continue to take 3 months for adjudication.

On the non-immigrant visa side of the employment-based process, the processing time for most I-129s, including H-1Bs, TNs, H-3s and E-1/2s, is 2 months.  At the California Service Center,[iv] L-1s and H-2A/Bs are being processed within a 1-month timeframe, while petitions for O and P status are moving at a scalding 2-week pace. The Texas Service Center is processing L-1 petitions at a slower 3.5 month rate.

To view USCIS’s processing time reports, please visit: https://egov.uscis.gov/cris/processTimesDisplayInit.do.


[i] Under the bi-specialization initiative, the Nebraska and Texas service centers processe I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).

[ii] With the exception of Multinational Manager petitions, I-140s are eligible for premium processing. Premium processing requires an additional $1225 government filing fee and requires USCIS to take action on the case in 15 calendar days or less.

[iii] The processing time for an I-485 application only applies to those whose priority dates are current.

[iv] Under the bi-specialization initiative, and from an employment-based perspective, the California and Vermont service centers process I-129 petitions for non-immigrant workers.

July 2011 Visa Bulletin: Significant Advancement for EB-2

The U.S. Department of State has issued the July 2011 Visa Bulletin.  There has been substantial forward movement in a number of categories, while other categories crept forward only slightly.  The good news is that most categories are currently moving in the direction of less retrogression.
 
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 and China moved from October 15, 2006 to March 8, 2007, a positive change of nearly five months.  Because these categories moved more than one month, it signifies a slight erosion of immigrant visa retrogression.
 
EB-3 did not experience the gains made by EB-2, with the exception being EB-3 Mexico, which actually moved a little more than 6 months, from December 22, 2004 to July 1, 2005.  EB-3 China moved 1.5 months from May 15, 2004 to July 1, 2004. The most lethargic category was EB-3 India, which moved 1 week from April 22, 2002 to May 1, 2002.  

In the June 2011 Visa Bulletin, the EB-3 category for the Philippines and “All Chargeability Areas Except Those Listed” had an effective date of September 15, 2005.   These categories moved a disappointing three weeks to October 8, 2005.  Because it moved less than a month, it essentially means this category experienced more retrogression. 

The July 2011 Visa Bulletin can be viewed at:

http://www.travel.state.gov/visa/bulletin/bulletin_5092.html.

USCIS Updates Case Processing Times

Processing times posted on the U.S. Citizenship and Immigration Services’ (USCIS) website have recently not been completely reflective of actual processing times.  USCIS has advised the American Immigration Lawyers Association (AILA) that much of this is due to technical limitations.  Specifically, the software used to collect this information cannot perform real-time reporting.  The concern is that inquiries to USCIS cannot be made until the case is 30 days past normal processing times.  Compounding the problem is the fact that the National Customer Service Center (NCSC) cannot take a referral to the adjudicating service center until the case is 30 days past the “real” processing time.  So petitioners may be submitting inquiries on cases that appear outside of normal processing times, according to the timeframes listed online, but NCSC might not be able to take the referral because the case is not 30 days beyond the “real” processing time.  This can have a significant impact on planning ahead and meeting fluctuating business needs.

In response to AILA’s raising of this concern, USCIS is scheduled to begin a pilot test of a new Enterprise Performance Analysis System (ePAS) that is intended to facilitate more timely data collection and reporting.  The new ePAS system is designed to collect data on a daily basis.  A new Standard Management Analysis Reporting Tool is also being introduced to provide next-day reporting capabilities of data collected by ePAS.

 

Today, the four USCIS regional offices have issued updated processing times.

Nebraska Service Center

Under the bi-specialization initiative, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).

All I-140 petitions continue to have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers, those with Extraordinary Ability, and Multinational Managers.

I-485 applications for employment-based adjustment of status* continue to be processed in about four months’ time.

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remain at a troubling 3 months.  The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.  Applications to extend EAD and AP can only be filed 4 months in advance.  With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization.

Texas Service Center

For employment-based immigration cases, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits.

The processing time for I-140s has continued to drift backwards at TSC.  Extraordinary Ability, Outstanding Researcher and Multinational Manager cases, as well as I-140s for those in the employment-based second and third preference categories, are now taking an estimated 8.5 months.

The processing time for employment-based I-485 applications* is also falling further behind, with a listed date of September 6, 2010, or nearly 9 months.  Derivative employment (I-765) and travel (I-131) benefit applications are still taking 3 months.

California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.

The processing time for most I-129s, including H-1Bs, TNs and E-1/2s, is 2 months.  L-1s and H-2A/Bs are being processed within a 1-month timeframe, while petitions for O and P status are moving at a blistering 2-week pace.

Applications for employment authorization for L-2 dependent spouses have a processing time of 3 months.

Vermont Service Center

The Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant employment-based cases.

For employment-based cases, VSC’s processing times mostly mirror CSC’s processing times.  The exception is L-1 intracompany transfer cases, which are taking around 3 months.

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplayInit.do.

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* Please note that the processing time for an I-485 only applies to applicants whose priority dates are current.

USCIS Announces Initial H-1B Receipt Numbers

The U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received approximately 5,900 H-1B petitions under the regular H-1B cap of 65,000, and that around 4,500 have been counted toward the 20,000 set aside for those with advanced U.S. degrees.  This means that USCIS continues to accept applications for initial H-1B status a week after the H-1B filing season opened up on April 1st.  This seems to be a reflection of the economy as it continues its slow improvement. 

It is interesting to note that fewer H-1B numbers have been accounted for during the first week of this cap-filing season than were received during the same timeframe last year.  However, considering that H-1B numbers for last year’s H-1B cap were available through most of January, it is logical that fewer H-1B petitions were stockpiled for an April 1st filing.

Last year’s H-1B cap for FY2011 also experience much lower demand, with H-1B numbers being available until January 26, 2011 – the FY2011 cap opened on April 1, 2010. The lower demand of the past two years is in stark contrast to the FY2009 H-1B cap when 133,000 H-1B petitions were received within the first two days of filing.  Again, the usage of H-1B numbers appears to be in direct correlation with the health of the economy.

In light of the announcement today, H-1B petitions will continue to be accepted by USCIS.  If the 20,000 set aside for those with advanced U.S. degrees is exhausted first, H-1B numbers for these applicants will be taken from the regular cap of 65,000.  On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

USCIS Proposes New H-1B Pre-Registration Process

Today, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to amend its regulations to require companies filing H-1B petitions to pre-register each new cap-subject H-1B case prior to filing.  The proposed rule will be printed in the Federal Register tomorrow, March 3, 2011, and will be open for comments for 60 days.

 

Under this new rule, USCIS would create an internet-based electronic registration process for U.S. employers that anticipate filing H-1B petitions subject to the annual limitation of 65,000 under the regular H-1B cap or 20,000 under the advanced U.S. degree cap.  Employers would go into the electronic registration system and provide information about the company and specific employee to be sponsored.  A separate registration is required for each beneficiary.  In part, this is to avoid certain petitioners from monopolizing large numbers of H-1Bs for unknown potential beneficiaries in the future.  In other words, employers would need to name a specific individual for which H-1B sponsorship will be sought.  The registration acceptance would need to be paired with the H-1B petition, which avoids substitution of one beneficiary for another.

 

The thrust of the new proposal is to save time, money and other resources in years where the annual H-1B cap numbers are exhausted within the first few days.  For example, the FY2009 H-1B cap, which opened up on April 1, 2008, saw 133,000 H-1B petitions filed within the first few days under the regular cap of 65,000.  These cases were put into a random lottery and those not selected were rejected and returned.  According to USCIS, this created a significant burden to manage the additional filings and return them to petitioners.  In a year where demand is significantly higher than availability, such as with the FY2009 H-1B cap, the pre-registration rule would essentially streamline the selection process by managing it electronically before any case is filed.  While all cases properly registered will receive a notice of acceptance, an H-1B case would only be filed upon receipt of a notice of selection.  Each notice will have a unique identifying number for tracking purposes.

 

As far as the specific process goes, USCIS anticipates opening registration a minimum of two weeks prior to the start of the H-1B filing season.    If the number of registrations is not sufficient to meet the annual H-1B cap allotment, the registration period will remain open until the cap is exhausted and all cases received during the initial registration period will be accepted.  Once USCIS believes sufficient H-1B cases have been received, it will announce the closing of registration and conduct a random selection of all registrations received on the last day of the registration period.

 

When an employer receives a notice of selection, it will have 60 days from that time to file the corresponding H-1B petition.  Petitions filed after the 60-day filing period would be rejected.  Again, USCIS will not permit the substitution of beneficiaries. 

 

This rule would create a number of significant differences in internal processing.  We will monitor the progress of this proposed rule and will send out another news alert and communications to our clients once the final rule has been confirmed.  We will work with clients to ensure compliance with the final rule.  Please contact Graham Adair with questions about how this proposed rule might affect annual H-1B cap processing.

New Combined EAD and AP Card

The U.S. Citizenship and Immigration Services (USCIS) just announced that it will start issuing a new combined employment authorization document (EAD) and advanced parole document (AP) to certain individuals who have a pending employment or family based I-485 application to adjust status. This new combined EAD/AP card will look similar to the current EAD card, but will contain language on the face of the card that states “Serves as I-512 Advanced Parole.” The new card will be issued to individuals who concurrently apply for their EAD and AP documents with their I-485 application. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other.

The new card will be issued for one to two years at the discretion of USCIS. This new card will allow individuals to carry only a single document for work and travel authorization while the I-485 applications are pending.

Employers will be able to treat this document as a List A document for purposes of I-9 verification.

If you have further questions about this document please contact Graham Adair.

H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) announced this evening that it received sufficient petitions to exhaust the FY2011 H-1B cap as of Wednesday, January 26th.  Cases properly filed and received before Wednesday the 26th will be accepted and processed to adjudication.  Cases received on Wednesday will be subjected to a computer-generated random selection process.  Cases not selected in the lottery will be rejected and filing fees returned.  No announcement has been made yet on how many petitions will be subjected to the random selection, nor how many numbers are available for those cases.

 

It should be noted that even if postmarked on or before Wednesday the 26th, cases not physically received by USCIS by that date will be rejected and filing fees returned.

 

The FY2012 H-1B cap will open on April 1, 2011.  Cases approved for FY2012 will not become effective until October 1, 2011, which is when the new fiscal year begins.  Employers wishing to employ individuals who missed the FY2011 cap will need to ensure continued U.S. work authorization through at least September 30, 2011, to keep them on payroll until a new H-1B can be obtained.

 

There are a number of options available to those who missed the H-1B cap.  For specific guidance, please contact Graham Adair: info@grahamadair.com.

U.S. Department of State Provides Guidance L-1B Specialized Knowledge

The Department of State (DOS) issued a memorandum to U.S. consular posts in an effort to define L-1B specialized knowledge. The memorandum lays out criteria that L-1B visa applicants can expect to encounter.  Of course, policy memoranda have a tendency to take some time for full implementation, but the guidance may permeate through U.S. consular posts fairly quickly.    

The memorandum essentially applies a stricter standard than what has been seen at U.S. consular posts in recent history.  While this higher threshold has been applied over the past few years at U.S. Citizenship and Immigration Services (USCIS), it will be new for U.S. consular posts.

It is noteworthy that the law being relied upon for the heightened specialized knowledge scrutiny dates back to before the enactment of the Immigration Act of 1990.  Indeed, it goes contrary to more recent policy memoranda issued by USCIS applying a more relaxed burden of proof on sponsoring employers.

Proprietary Knowledge

The DOS notes that knowledge of proprietary products, services, or processes is not required, but recommends that adjudicators take it into consideration when making a determination.  It seems, therefore, that employees with knowledge of proprietary company information stand a better chance of success. The DOS cites the former INS standard that if “it would be difficult to impart to another without significant economic inconvenience,” this may be dispositive to the outcome of determining specialized knowledge. 

Key Personnel

For larger companies with more than one employee holding a specified position, the issue of “key” versus “normal” personnel should be considered, according to the memorandum.  In other words, consideration should be given to whether this employee is more experienced or otherwise has a deeper level of knowledge of a specific company function. This is not to say that only one employee of a particular job family can qualify.  Instead, he or she should be distinguishable from other “ordinary” skilled workers within the company. 

More than Ordinary

The memorandum also instructs that the “more than ordinary” standard should also be applied.  The dichotomy here is that the DOS also explains that the employee need not be extraordinary.  In trying to explain where this factor comes down, the memorandum notes that the employee’s work should involve knowledge of special company projects or greater than normal experience or knowledge.  There appears to be some overlap between the “key personnel” and “more than ordinary” standards.

Employer-Employee Relationships

Similar to USCIS’s position on this issue, in instances where an employee will be placed at the worksite of an unaffiliated company, DOS requires proof that the employee will be controlled and supervised by the sponsoring employer.  While the unaffiliated company may have input into what the employee does on a day-to-day basis, the main issue is the ultimate right of control – this must reside in the sponsoring employer to maintain the requisite employer-employee relationship.

 

Graham Adair will work with clients to anticipate the application of this stricter standard by supplying additional information about the nature of the transferring employee’s skills and experience.  If a distinction about the employee’s specialized knowledge cannot be made, his or her visa application could be denied.

H-1B Cap Update: Less Than 7,000 H-1Bs Left for FY2011

The U.S. Citizenship and Immigration Services (USCIS) has announced that as of December 31, 2010, it has accepted 57,300 cap-eligible H-1B petitions, leaving approximately 7,250 available.*  This benchmark came a week ago, so it is likely that there are now fewer than 7,000 H-1Bs left for FY2011. 

USCIS has also indicated acceptance of 20,000 petitions filed under the advanced U.S. degree set-aside.  This means that the advanced U.S. degree cap has been exhausted.

Graham Adair advises clients to file all necessary H-1B petitions as soon as possible to avoid missing the FY2011 cap.  On average, approximately 6,000 H-1B petitions have been accepted by USCIS every month, although the general rate seems to have increased over the recent months.  If the cap is missed for this year, clients will have to wait until April 1, 2011 to file new H-1B cases, which if accepted would become valid on October 1, 2011.

Please contact Graham Adair for assistance: info@grahamadair.com.

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*Every year, up to 6,800 H-1B numbers are set aside for citizens of Chile and Singapore.  Any unused numbers are rolled over to the following year’s H-1B cap.  This means that in any given year, the regular H-1B cap consists of 58,200, plus any carry over from the unused Chile/Singapore set-aside of H-1Bs from the previous year.   There were 6,350 unused from FY2010, which have been rolled into the FY2011 cap.  This means that at total of 64,550 (58,200 + 6,350) H-1Bs were actually available in FY2011 for those not citizens of Chile or Singapore.

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