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.

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.

USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices have issued updated processing times.  Generally, processing times have remained consistent this month from last month, with some improvement in H-1B processing times at the California Service Center.  The processing of H-1B extensions at the Vermont Service Center continues to be extremly slow, with processing times at about five and a half months.  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.  The California Service Center processing of H-1B extensions is still around 2 months. 

 

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 being processed in around two months, which is an improvement over last months report. 

Applications for employment authorization for L-2 dependent spouses 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 have improved and are now being processed in about 2 months.    H-1B extensions are still being processed at around five and a half months; we anticipate that this processing time will improve over the next couple of 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.

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 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

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.  With the exception that employment based I-485 applications are taking right around 6 months, with a specific processing date of June 5, 2010 being given, which is an indication that the USCIS is working to bring this processing time down to its stated goal of four 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 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.

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 – 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 – Automatic Cap-Gap Solution for F-1 Students

Last year, the U.S. Citizenship and Immigration Services (USCIS) introduced an interim rule that generates an automatic extension of status for certain F-1 students with approved H-1B petitions filed under the FY2010 H-1B cap.  This interim rule remains in force for the FY2011 H-1B cap this year.

A gap in status can occur between the time an employer files a petition for an F-1 student to change to H-1B status and the time the H-1B status becomes active on October 1st.  Specifically, in years where all H-1B numbers are exhausted, employers may not file an H-1B petition earlier than April 1st for the following fiscal year, which starts October 1st.  So, for example, if an F-1 student has approved optional practical training (OPT) work authorization that expires on July 1st, and her H-1B status cannot begin until October 1st, there would be a 3-month gap during which she could not work.  (And, incidentally, in this example she would be required to return to her home country until her H-1B status became active, at which time she would need to apply for an H-1B visa stamp at a U.S. consular post before she could re-enter the United States in H-1B status.) 

Once a timely H-1B petition has been filed, the automatic cap-gap extension will be invoked and will continue until the petition is approved.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30th.  If the petition is ultimately denied, withdrawn or revoked, the cap-gap protection is removed.  In that case, the student would have the standard 60-day grace period from the date their OPT ends to depart the United States. 

An F-1 student benefiting from cap-gap provisions will need to get an updated Form I-20 from his designated school official (DSO).  Indeed, a new I-20 will be the only document a student will have to demonstrate continuing OPT work authorization. In some cases, the student’s DSO may need to update the student’s SEVIS record to have the cap-gap extension properly applied.

F-1 students should not depart the United States during cap-gap periods.  The reason for this is that, technically, the EAD card of an F-1 student on OPT will have expired under a cap-gap situation.  Therefore, if the student departs the United States during the cap-gap extension period, she will not be able to return in F-1 status.  Instead, she would have to apply for an H-1B visa at a U.S. consular post abroad and plan to re-enter the United States after her H-1B becomes active on October 1st.

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.

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