UNITED STATES – USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices have issued updated processing times.  The general trend seems to be slightly faster processing times for most employment-based case types.  As the economy has struggled, fewer petitions have been filed.  This has enabled USCIS to move cases faster through the process to final adjudication.  As the economy begins to improve and the volume of employment-based sponsorship increases, USCIS will need to maintain proper staffing levels to avoid having processing times backslide.

California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.  CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s is 2 months.  This includes petitions for initial H-1B status, H-1B extensions, TN status, O-1 status, and H-3 status.  Petitions for L-1 individuals, H-2As, and H-2Bs are down to 1 month.

Interestingly, most applications for dependent spouses and children are at 2.5 months.  Applications for employment authorization for L-2 dependent spouses currently have a processing time of 3 months.

Vermont Service Center

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant employment-based immigration benefits.  VSC processes cases filed for individuals whose worksites are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

For employment-based cases, VSC’s processing times mirror CSC’s processing times.  Most I-129 petitions have a processing time of 2 months, with the exception of L-1 individuals, H-2As, and H-2Bs.  Again, applications for dependents are at 2.5 months, and applications for L-2 dependent spouse work authorization are 3 months.

Nebraska Service Center

For employment-based immigration cases, 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).  NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

I-140 petitions now have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers or Professors, or those with Extraordinary Ability.  I-485 applications for adjustment of status are down to less than 10 months. 

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remains 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

Under the bi-specialization initiative, 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 (EAD work document and advance parole travel authorization).  TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

The processing times at TSC are the same as those listed above for NSC, except that I-485 applications for adjustment of status are taking just over 6 months.  This is a surprisingly fast processing time for this type of case.  Several months ago, many I-485 applications for adjustment of status were taking close to a year.  Please note that the processing time for an I-485 only applies to applicants whose priority dates are current.

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplay.do;jsessionid=cab8BH8TCZBdC_JKj6Ils.  Select the desired regional processing center in the pull-down menu at the bottom of the page.

UNITED KINGDOM – U.K. Visa Fees Rise

The United Kingdom has announced that all U.K. visa applications will be subject to higher visa fees, although some are only rising slightly while others are rising significantly.  These new fee rates took effect on April 6th:
 
· Tier 1 visas for investors/entrepreneurs increased £15 to £690.
 
· Tier 2 visas for skilled workers increased by £5 to £270.
 
· 5-year multiple entry visas went up £20 to £420.
 
· 10-year visas increased £110 to £610.
 
· Tier 4 student visas increased £54 to £199.
 
The group that was impacted the most by the new fee structure is those with dependent relatives.  Settlement Visas for dependent relatives jumped from £585 to £1680, an increase of nearly 300 percent. An application for indefinite leave to remain for a dependent relative in the U.K. will rise to £1,930.  An additional 10 percent will now also be charged for dependent children.
 
The United States took similar action in 2007 with large fee increases. This sparked widespread criticism by immigrant advocates, who argued that steep hikes could impact some immigrants more than others, perhaps resulting in some applicants not being able to afford citizenship and other immigration benefits. In fact, immigration applications did drop off noticeably. U.K applications could face similar sharp declines, especially in light of the shaky economy.

MEXICO – Violence Against U.S. Targets in Mexico Increasing

On Friday, April 9th just before midnight, an unknown assailant tossed an explosive device over the wall surrounding the U.S. Consulate in Nuevo Laredo, Mexico.  The bomb caused some structural damage to the building, but no employees were injured.  Mexican officials in Mexico City said they were reviewing evidence, including security camera video surveillance recordings.
 
This attack is another link in an alarming chain of violence against U.S. targets in Mexico. Last month, a group conspired against U.S. consular workers in Ciudad Juarez who had been attending an engagement together. Gunmen followed and killed three individuals who had left the gathering, also injuring several of their children who were accompanying them.
 
The U.S. Department of State has issued an updated travel warning for citizens of the United States in Mexico. The warning was issued to alert travelers to the risks in northern territories of Mexico. It also noted that drug cartels have retaliated violently against individuals who speak out against them or whom they otherwise view as a threat to their organizations. The State Department has also authorized approximately 100 family members of employees of the U.S. Consulate in Ciudad Juarez to depart Mexico for the United States amid concerns of increased security risk.
 
In 2008, two men fired shots and threw a grenade – which didn’t explode – at the U.S. consulate in Monterrey. Nobody was hurt in that assault, but the gate was left pockmarked. Five days later gunmen again fired at that consulate.
 
Many individuals who need to apply for U.S. visas elect to cross the border into northern Mexican cities with U.S. consular posts. The convenience of the location is a draw for many foreign-born individuals living in the United States who have a need to travel internationally. Given the increased security risk and the potential for processing delays, individuals wishing to apply for visas at U.S. consulates in northern Mexico should weigh the risks of delay carefully in making their decision on where to apply for a visa.

SOUTH AFRICA – South Africa Contemplating New Policy on Business Immigration

South African officials have expressed concern that current immigration laws do not entice enough investors and entrepreneurial talent to the country.  The Global Entrepreneurship Monitor has consistently rated South Africa below other strong developing countries, which is due, in part, to its tight immigration policy that does not encourage a stead infusion of higher level skills and entrepreneurial-minded investors.
 
Currently, in order to qualify for a business visa to South Africa the applicant must demonstrate an intention of investing at least 2.5 million Rand (~$350,000) in a new or existing business.  This can be a serious barrier to entry for those who have innovative ideas, but little capital to get their business off the ground.  Such businesses would need to begin operations elsewhere and then relocate to South Africa.  While there is an exception to the capital investment rule, it is narrowly tailored to fit businesses in a limited number of industries.

Furthermore, South Africa’s work permit process only permits work authorization for 1 year at a time.  Work permits can be extended, allowing the person to remain and continue working, but the inconvenience of doing this on an annual basis can be discouraging to professional-level workers.
 
South Africa has taken steps to reform its education system to meet some of these needs.  However, the fruits of that effort will not appear for year.  In the meantime, South African’s International Investment Council has expressed a desire to reform current immigration law to entice young, risk-taking professionals who have the ability to add thousands of jobs to the economy.  In the meantime, some South African officials are concerned that the gap could lead to serious economic problems.

CANADA – Priority Occupation List Changing

Canada is restructuring its Priority Occupation List.  Discussions on this issue indicate that a number of occupations that were previously eligible will now be taken off the list.  The priority occupation list comprises the positions that the Canadian Government deems to be most in demand (i.e., hardest to fill with Canadian Citizens).  The positions that will be removed are likely going to be those not considered professional-level jobs.  Once the new occupation list is released, we will provide an update.
 
Because of the suffering global economy, Canada’s unemployment rate has been on the rise. According to Canada’s Labour Force Survey, unemployment in Canada has risen to 8.2%. While unemployment in Canada is not as severe as it is in the United States, it signifies a surplus of job seekers. This change to the priority occupation list is an effort by Canadian officials to help its citizens find open positions that might have otherwise been filled by talent from another country.
 
This change is scheduled to take effect on May 1, 2010.

UNITED STATES – April 9, 2010 – H-1B Cap Remains Open

The U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received 13,500 H-1B petitions under the regular H-1B cap of 65,000, and that 5,600 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 struggles to get back on track. 

Last year’s H-1B cap for FY2010 experienced a curious phenomenon wherein the 20,000 H-1B numbers set aside for those with advanced U.S. degrees were nearly used up within the first few days, but the 65,000 general H-1B numbers were available into December.  This was intriguing because of the inversion of the regular and advanced U.S. degree caps.  Ever since the 20,000 set aside came into existence, it has always taken longer to deplete than the 65,000 regular H-1B numbers.  This reflected a surplus of highly educated foreign graduates from U.S. universities who were hired in lieu of their bachelor’s or foreign degree counterparts.  Demand for H-1B numbers was certainly down last year overall, but the talent pool was larger and those with higher level degrees were still being pursued.

The lower demand of FY2010’s H-1B cap was 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.

DHS Getting More Customer Service Oriented With E-Verify

The U.S. Department of Homeland Security (DHS) has announced an initiative to enhance customer service in three areas:

1. Telephone hotline;
2. Training videos; and
3. Streamlined adjudication of discrimination complaints for misuse of E-Verify.

Telephone Hotline

On April 5, 2010, a new hotline (888-897-7781) will open for general inquiries, issues and complaints. It will be an automated phone line that will eventually take the caller to a live representative in one of four areas:

1. General E-Verify information;
2. Completing Form I-9;
3. Contesting an E-Verify case; and
4. Filing a complaint regarding possible discrimination or misuse of E-Verify.

The hotline presents a nice first option for those seeking general information or redress for issues raised during the E-Verify process. However, with more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify, it remains to be seen whether the hotline will be properly staffed. If it is understaffed, long waits could dilute the utility of the hotline.

Training Videos

Training videos have been created by the DHS’s Office of Civil Rights and Civil Liberties and U.S. Citizenship and Immigration Services (USCIS). Each video is set up as re-enactments of real-world hiring scenarios in which the employees’ rights are considered to avoid potential discrimination or misuse of the E-Verify process. For now, there are two videos available. Each video is approximately 20 minutes long and is available for immediate viewing online at: www.dhs.gov/e-verify or
www.youtube.com/ushomelandsecurity. The videos are intended to help employers understand their responsibilities under E-Verify and to inform employees of their rights.

Streamlined Adjudication of Discrimination and Misuse Complaints

The Department of Justice’s Office of Special Counsel (OSC) has begun a two-way referral program with USCIS on claims of E-Verify misuse. When USCIS receives complains of potential discrimination, it will refer them to OSC. And when OSC learns of potential employer misuse of E-Verify that does not fall within its enforcement area, it will refer the complaint to USCIS. This streamlined process is intended to move complaints more quickly to a final determination and, if required, an investigation. OSC may initiate investigations of: (1) discrimination based on citizenship, immigration status, or national origin; (2) document abuse as part of the I-9 process; and (3) retaliation.

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.

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