USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices just issued updated processing times.  As a general trend, processing times for employment-based immigrant visa cases and most non-immigrant visa cases have improved, significantly in some categories.  The exceptions are H-1B petitions.  For example, an H-1B extension filed at the Vermont Service Center would need to have been filed by June 5th to be processing at this time.  This estimated five and a half month processing time can have a significant impact on foreign national employees.  This is why it is imperative that employers file H-1B extensions as close to the six-months-from-current-expiration-date mark as possible.  Otherwise, employees could encounter travel restrictions and have problems renewing driving privileges.

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, including TNs and E-1/2s, is 2 months.  L-1s and H-2A/Bs are being processed within a 1-month timeframe, while O-1s are moving at a blistering 2-week pace.  

H-1Bs are a different story.  Instead of being listed within a monthly timeframe, they have specific dates listed.  This means that CSC is beyond USCIS’s normal case processing goal.  All H-1B petitions have a date of July 1, 2010, which means the average processing time is currently around four and a half months. 

Interestingly, most applications for dependent spouses and children are at 2.5 months.  However, if it is an H-4 dependent, the case should not be approved before the principal’s H-1B petition.  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 cases.  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 mostly mirror CSC’s processing times.  The exceptions, again, are H-1B cases.  New H-1Bs (visa to be issued abroad) and H-1B change of status cases list a date of July 10, 2010, while H-1B extensions list June 5, 2010.    To reiterate, specific dates are listed where the case type is beyond USCIS’s normal processing goals. 

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. 

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

I-485 applications for adjustment of status have dropped significantly to 4 months.*  This is a 6-month improvement from the 10-month processing time in April of this year.  

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 

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 not necessarily surprising, since this is virtually the same processing timeframe as earlier this year.  What is noteworthy is that while TSC previously had the shorter processing time for employment-based I-485s, NSC is now the regional office with the greater efficiency on these cases.  

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. 

New USCIS Fee Schedule Goes Into Effect This Month

As a reminder, the new fee schedule for U.S. Citizenship and Immigration Services (USCIS) goes into effect on November 23, 2010.  Petitions postmarked on or after this date must include the new fees.  Without the new fees cases will be rejected and sent back.

USCIS published the new fee schedule in the Federal Register on September 24th.  Graham Adair also published a detailed analysis: http://www.grahamadair.com/news-updates/uscis-announces-fee-increases/.

The new fee schedule increases application and petition fees by an average of about 10 percent.

Department of Labor Issues FY 2009 Annual Foreign Labor Certification Report

 The U.S. Department of Labor (DOL) just issued its 2009 Annual Report on Foreign Labor Certification.  The figures are intriguing and noteworthy, but not surprising.  In 2007, there were very few audits issued and most cases were quickly certified, often just days from the date of filing.  From FY2007 to FY2008, the number of audits rose and there was a staggering 42% decrease in cases certified.  From FY2008 to FY2009, there was another significant decrease of 40% in certified cases.  Indeed, the total number of permanent labor certification cases approved in FY2009 was 29,502.  California was the largest draw, with 6,155 cases; New York was a distant second with 3,093.

Interestingly, the DOL report does not spend much time discussing the increase in audits.  It does, however, acknowledge that the enhanced audit effort has led to longer processing times.  While the increase in audits is certainly a significant factor in the dramatic decrease of certified cases, it is not the only culprit.  The financial crisis that took hold in the United States in 2008 and continued through 2009 was a major contributor.  The large number of unemployed looking for positions resulted in many tests of the labor market finding qualified and available U.S. workers for specified positions.  When a test of the labor market for a specified position turns up a willing and qualified U.S. applicant, it may prevent a bona fide permanent labor certification from being filed for a minimum period of six months.

Furthermore, with companies looking to reduce spending, the sponsorship of immigration benefits is one area that experienced cutbacks.  And because attorney fees for permanent labor certification require payment by the sponsoring company, this case type was probably impacted more than others.

The other significant factor in reduced certifications over the past few years is layoffs.  Many U.S. companies were compelled to reduce their workforce due to decreases in demand for their products and services.  When a U.S. citizen employee is laid off, permanent labor certifications for the position held by the U.S. worker cannot be sponsored for a minimum of six months.  Some very large U.S. companies experienced widespread rolling layoffs, inhibiting their ability, in some cases, to file permanent labor certifications for extended periods of time.

The decline in the number of certifications was experienced across all occupations, with agriculture experiencing the biggest slide – a decrease of over 83 percent from FY2008 to FY2009. Several other industries saw significant drops of over 50 percent, including retail trade, construction, waste management and remediation support services, and mining.

From a demographic standpoint, India and China remained the two top countries of origin for foreign workers in the PERM program.  India far exceeded any other country, however, accounting for nearly 39% of certified cases.  At number two, China only accounted for 7% of certified cases.  South Korea and the Philippines joined the top four, while Mexico dropped out of this top grouping.  Canada came in at number five, with nearly 5.5%.

We anticipate that, for the reasons discussed above, the downward trend of certified permanent labor certifications has continued in FY2010.

2012 Diversity Visa Lottery

The U.S. Department of State’s 2012 Diversity Visa Lottery online registration process begins at 12:00 p.m., Eastern on Tuesday, October 5, 2010.  It will be available until 12:00 p.m., Eastern on Wednesday, November 3, 2010.  Paper entries will not be accepted; applications must be submitted electronically. The electronic entry form is available at: www.dvlottery.state.gov.

The Department of State’s Diversity Immigrant Visa Program provides 50,000 diversity visas every year.  These visas are selected through a lottery system from entries by persons who meet stipulated eligibility requirements from countries with lower levels of immigration to the United States. Diversity visa applicants must have at least a high school education or two years of work experience in an occupation requiring at least two years of training or experience.  In the latter case, the experience must have been gained within the past five years.

Diversity Visa lottery winners will be notified through the Entry Status Check at: http://www.dvlottery.state.gov. It should be noted that those selected in the random drawing are not notified by email.  Those selected through the lottery system will receive further instructions, including information on fees for immigration to the United States.

It is best to apply early in the process, as there tends to be heavy demand for the Diversity Visa Lottery.  Applying early helps to avoid delays in processing due to high demand.  For further information, please contact us at: info@grahamadair.com.

USCIS Announces Fee Increases

Today the U.S. Citizenship and Immigration Service (USCIS) announced that it will raise the filing fees for most immigration benefits. The new fees will take effect on November 23, 2010. The final rule announcing the fee increases will be published in the Federal Register on September 24, 2010. The final fee increases are very similar to what was initially proposed by USCIS in June. The fees for most petitions will increase by a weighted average of 10%. The filing fee for an I-129 petition will be raised by five dollars, while the filing fee for the I-140 Immigrant Visa Petition increases by $105. Some petitions, including the N-400 naturalization application will have no fee increase.

In addition to the increase in filing fees for standard forms and applications, USCIS will increase the fees for its premium processing service. The premium process fee (currently set at $1000) will go up to $1225. The USCIS attributes this increase to the change in the Consumer Price Index since the premium processing fee was first introduced in 2001.

USCIS has justified the fee increases as being necessary to meet budgetary and funding requirements. Ninety percent of the USCIS operating costs are to come from collected petition fees. The additional premium processing fees have been justified as necessary to help improve technology and customer service initiatives at USCIS.

Any application filed with the USCIS prior to November 23, 2010 will still be subject to the current fee schedule. Applications submitted on or after November 23, 2010 will be subject to the new fees. If you have any questions about these fees please feel free to contact Graham Adair for more information (info@grahamadair.com).

UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.

If you receive a Notice of Inspection, please contact us right away at: info@grahamadair.com.

UNITED STATES – U.S. Department of State Issues August 2010 Visa Bulletin

The U.S. Department of State has issued the August 2010 Visa Bulletin.  There has been some solid forward movement in a number of categories, while other categories crept forward only slightly.  The good news is that everything is 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 moved from October 1, 2005 to March 1, 2006, a positive change of five months.  EB-2 China also advanced several months from November 22, 2005 to March 1, 2006, a change of more than three months.  Because these categories moved more than one month, it signifies a slight erosion of immigrant visa retrogression.

In July, the EB-3 category for Dominican Republic, Philippines, and All Chargeability Areas Except Those Listed had an effective date of August 15, 2003.   These categories moved an impressive nine and a half months to June 1, 2004.

EB-3 India and EB-3 China were equally disappointing.  Each only moved a month and one week, which is barely ahead of month-to-month improvement.  EB-3 India moved from November 22, 2001 to January 1, 2002, and EB-3 China moved from August 15, 2003 to September 22, 2003.

EB-3 Mexico is the only category that did not move, as it currently remains “unavailable.”

UNITED STATES – Obama Announces Plan for Comprehensive Immigration Reform

Speaking from American University in Washington, D.C. this morning, President Obama laid out some details on the framework for his plan for comprehensive immigration reform. 

He spoke out against Arizona’s recent controversial immigration law, which in many ways duplicates current federal immigration law, as “ill-conceived.”  Obama says a patchwork of immigration enforcement laws by local governments puts huge pressure on local enforcement agencies “to enforce rules that are ultimately unenforceable.”  Obama says that such laws put additional pressure on state budgets, create a disincentive to report crimes in those communities, and open the door for discrimination based on race or one’s appearance.

In reference to what to do with the estimated population of 11 million undocumented people currently living in the United States outside of the law, Obama’s plan appears to be closely patterned after the Kennedy-McCain comprehensive immigration reform bill that was proposed a few years ago.  Specifically, Obama would create a pathway to legal status for these individuals.  They would be required to come forward and self-identify, register in a government tracking database, pay a fine, pay taxes, and learn English before they could get in line and earn their citizenship.  Presumably, as proposed in the Kennedy-McCain bill, their place in line would be somewhere behind those who are obeying federal immigration law by entering the United States through legal channels.

Obama’s framework would also make it easier for best and brightest to come to the United States to create jobs and help stimulate the U.S. economy.  He did not discuss the specifics of how he would do this.  Presumably it would involve a system wherein higher credentials, including education and experience, would increase the ability of an individual to receive a work visa.

Finally, President Obama would revive the DREAM Act.  The Development, Relief and Education for Alien Minors Act would provide certain undocumented alien students who (1) graduate from U.S. high schools, (2) demonstrate good moral character, (3) arrive in the United States as minors, and (4) have been here continuously for at least five years, the opportunity to earn conditional permanent residency.  The students would obtain temporary residency for a period of six years.  Within the six-year period, the student would have to receive a degree from an institution of higher education in the United States, or at least have completed 2 years toward a bachelor’s degree.  Alternatively, the student could serve in the armed forces for at least 2 years with an honorable discharge.

Initial estimates say that Obama’s plan would cost $600 million and would include more than 1000 new federal agents, five new FBI task forces, and more immigration judges and prosecutors.

UNITED STATES – USCIS Proposes an Increase to the Existing Fee Schedule

Today the U.S. Citizenship and Immigration Services (USCIS) announced a proposed increase to filing fees for most immigration benefits.  The announcement was published in the Federal Register and will be open for public comment for the next 45 days.  The fee increases are weighted at about 10% across all form types, however, some forms have a reduction in fees or stayed essentially the same.  The filing fee for Form I-129, for example, is set to be raised by $5, while the filing fee for Form I-140, Immigrant Visa Petition would increase by $105.  The rest of the proposed fee schedule is listed below.

In addition to the increase on filing fees for standard forms and applications, USCIS is proposing a fee increase to its premium processing service.  The premium process fee (currently set at $1000) would be increased based on the change in the Consumer Price Index (CPI) since the 2001 inception of the premium processing program.  While the final fee will not be determined until the final rule announcing the new fee schedule is published after this notice and comment period has passed, the fee will likely increase by $225 based on current CPI data.

USCIS has justified the fee increases as being necessary to meet budgetary and funding requirements.  Ninety percent of the USCIS operating costs are to come from collected fees.   The additional premium processing fees have been justified as necessary to help improve technology and customer service initiatives at USCIS.

Graham Adair will continue to monitor these developments and provide updates as they become available.

The proposed fee schedule is as follows: 

   
Application/Petition Description  Current Fees  Proposed Fees
I-90 Application to Replace Permanent Resident Card $290 $365
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document $320 $330
I-129 Petition for a Nonimmigrant worker $320 $325
I-129F Petition for Alien Fiance(e) $455 $340
I-130 Petition for Alien Relative $355 $420
I-131 Application for Travel Document $305 $360
I-140 Immigrant Petition for Alien Worker $475 $580
I-290B Notice of Appeal or Motion $585 $630
I-360 Petition for Amerasian, Widow(er) or Special Immigrant $375 $405
I-485 Application to Register Permanent Residence or Adjust Status $930 $985
I-526 Immigrant Petition by Alien Entrepreneur $1,435 $1,500
I-539 Application to Extend/Change Nonimmigrant Status $300  $290
I-600/600A Orphan Petitions $670 $720
I-687 Application for Status as a Temporary Resident $710 $1,130
I-690 Application for Waiver on Grounds of Inadmissibility $185 $200
I-694 Notice of Appeal of Decision $545 $755
I-698 Application to Adjust Status From Temporary to Permanent Resident $1,370 $1,020
I-751 Petition to Remove Conditions on Residence $465 $505
I-765 Application for Employment Authorization $340 $380
I-817 Application for Family Unity Benefits $440 $435
I-824 Application for Action on an Approved Application or Petition $340 $405
I-829 Petition by Entrepreneur to Remove Conditions $2,850 $3,750
Civil Surgeon Designation   $0   $615
I-924 Application for Regional Center Under the Immigrant Investor Pilot Program  $0 $6,230
N-300 Application to File Declaration of Intention  $235 $250
N-336 Request for Hearing on a Decision in Naturalization Proceedings $605 $650
N-400 Application for Naturalization $595 $595
N-470 Application to Preserve Residence for Naturalization Purposes $305 $330
N-565 Application for Replacement Naturalization/Citizenship Document $380 $345
N-600/N-600K Naturalization Certificate Applications $460  $600
Waiver Forms (I-191, I-192, I-193, I-212, I-601, I-612) $545 $585
Immigrant Visa  $0 $165
Biometric Services $80 $85

UNITED STATES – U.S. Department of State Raises Visa Application Fees

Starting on June 4, 2010, U.S. visa application fees are scheduled to increase.  Instead of the current flat fee of $131 that was established on January 1, 2008, a new tiered structure is set to be implemented and will mandate varying fee amounts based on the visa type.   The new fee schedule will be as follows:

$140 – Non Petition-Based Visas

  • B-1/B-2 Visas for Tourists and Business Visitors
  • J Visas for Exchange Visitors
  • F Visas for Academic Students
  • M Visas for Vocational Students

$150 – Petition-Based Visas

  • H-1B Visas for Specialty Occupation Workers
  • H-3 Visas for Trainees
  • L Visas for Intracompany Transferees
  • O Visas for Extraordinary Ability Workers
  • P Visas for Athletes, Artists and Entertainers
  • Q Visas for International Cultural Exchange Visitors
  • R Visas for Religious Workers

$350 – K Visas for Fiancé(e)s of U.S. Citizens

$390 – E Visas for Temporary Workers, Treaty Traders and Treaty Investors

After conducting an analysis of its cost in processing visa applications, the U.S. Department of State (DOS) determined that it was not covering its costs.  The average cost per visa application averaged out to approximately $136.93, which is nearly $6.00 more than the current visa application fee of $131.  Furthermore, the fee analysis detected higher costs for certain types of visa applications, which is why the tiered fee schedule is being implemented.

The reason given for the difference between non petition-based visas and petition-based visas is that the unit cost for petition-based cases is higher.  This is due to the costs of receiving petition information from the U.S. Department of Homeland Security (DHS), conducting reviews of government and commercial databases to confirm the existence of the petitioning employer, and entering that data into the Petition Information Management Service (PIMS) database.

The DOS has asserted that K visa applications for fiancé(e)s of U.S. Citizens and E visa applications for Treaty Traders and Treaty Investors are significantly higher because adjudicating them requires a review of extensive documentation and a more in-depth interview of applicants than other types of visa applications.  It is interesting that in discussing its rationale for the higher $390 fee for E-3 workers from Australia, the DOS has said that E-3 visa applications require the consular adjudicator to both determine whether the employment falls under the E-3 program and assess the eligibility of the applicant.  This assessment is very similar to what consular adjudicators must do for Blanket L visa applicants, yet these individuals apparently fall under the lower $150 tier.

Visa applications for Trade Nafta (TN) professionals from Mexico do not seem to be contemplated in the interim final rule provided in the Federal Register.  However, under the rationale described above for the higher fee on petition-based visa applications, it would be logical for an initial visa application to fall under the lower $140 fee since the consular post does not receive information from DHS, nor is PIMS implicated.  However, under the rationale given for the higher E-3 fee, TN visa applicants could also be placed at the highest $390 tier.  It remains to be seen how the DOS will treat TN visa applicants.

Along with the publication of the interim final rule in the Federal Register, DOS will also re-open public comments for an additional 60 days. At the conclusion of that period, DOS will consider public comments and publish a final rule.

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