Revised - Updated Service Center Processing Times

September 30, 2014

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 9/19/14 with processing dates as of 7/31/14.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.


California Service Center (CSC)

National Benefits Center (NBC)

Nebraska Service Center (NSC)

Texas Service Center (TSC)

Vermont Service Center (VSC)

EB-5 Immigrant Investor Program Office (IPO)

Revisions:
CSC
I-539 - Application to Extend/Change Nonimmigrant Status - All other extension applications – changed from May 16, 2014 to 2.5 months
I-765 - Application for Employment Authorization - Based on a pending asylum application [(c)(8)] – changed from June 16, 2014 to 3 weeks
I-765 - Application for Employment Authorization - All other applications for employment authorization – changed from February 2, 2014 to 3 months
I-824 - Application for Action on an Approved Application or Petition - To request further action on an approved application or petition – changed from June 5, 2013 to 3 months


**Please be aware that the data provided above is approximately 45 days old at the time of posting.

If your petition is out-side of the normal range listed, contact USCIS (1-800-375-5283).

If you are a client of MVP Law Group and would like our assistance please contact our office.

BALCA Finds Employer Failed to Investigate Qualifications of U.S. Applicants

September 29, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Design Engineer-Mechanical.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded by sending its recruitment report as well as resumes from U.S. applicants. In response, the CO informed the Employer that they would be required to conduct supervised recruitment. As part of the process, the Employer could only advertise the position in permitted publications and abide by specific advertising conditions. The Employer sent the CO a copy of the proposed job advertisement that was approved by the CO. A few weeks later, the Employer sent copies of the Arkansas State Workforce Agency job order; newspaper ads, on-line job postings from its company web page and a job search website. The CO told the Employer about the resumes that he had received as well.

A few months later, the CO told the Employer that the recruitment time had concluded. In 30 days, the employer was required to submit a comprehensive written report about the recruitment process and the outcomes. In a timely manner, the Employer presented its recruitment results. In the report, the Employer noted it had received resumes from 45 applicants. During the review of the resumes, the Employer cited it considered job applicants based on their education, training, experience as well as trainability. The Employer believed that none of the applicants fulfilled the minimum job requirements and therefore, were not qualified for the position.

Upon review of the recruitment report, the CO denied certification of the labor application. He stated the Employer excluded qualified U.S. job applicants for other than lawful, job-related reasons. The CO believed there were at least ten possibly qualified candidates for the job opening.

The Employer requested review of the denial, so the CO sent the case to BALCA. In its review request, the Employer emphasized the ten candidates, named in the CO’s denial, were not qualified for the position because they either did not meet the minimum education requirements; did not have experience with the Unigraphics system; or did not possess a background in or knowledge of heat transfer and fluid dynamics. The Employer claimed that training for these individuals would be time consuming and very costly. The Employer believed it was within their right to discard candidates that lacked the job requirements.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer inappropriately excluded job applicants without interviewing them or researching their background. In addition, BALCA thought the Employer did not take into consideration that “these applicants could became qualified after a reasonable period of on-the-job training or taking on-line tutorials or training courses.”

MVP LAW GROUP – Immigration Q&A Forum, Friday, September 26, 2014

September 26, 2014

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1- H1B Nonimmigrant Visa
I need to extend my H-1B visa. Last year, I worked for another company in my home country for 5 months. Because of the H-1B six-year limit, can I ask the USCIS to recapture my 5 month time spent outside of the U.S. from my H-1B visa time?

Answer #1
Yes, you may file an H1B petition with the USCIS requesting that they recapture any period of time that you spent outside of the United States. Be sure to have sufficient evidence to document your time spent outside of the U.S. (i.e. passport stamps, previous I-94 stamps, travel history, etc.)


Question #2 – Employment Based Immigration
My employment-based I-140 application has been approved. Now, I need to file an I-1485 for myself, my wife and my son to get their Green Cards. Do I need to file Form I-864 as an Affidavit of Support?

Answer #2
First, you must determine whether or not your priority date is current, and only if it is current are you able to file the Adjustment of Status petitions with the USCIS. As far as the Affidavit of Support form is concerned, I do not believe in your case it is a requirement. If you would like to speak to a qualified Immigration Attorney concerning the specifics of your case, please contact our office to schedule a Consultation.


Question #3 – H-1B Nonimmigrant Visa Petition
As a H-1B visa holder, I used all my 6 years of H-1B status in United States, and I will go back to my home country for one year to apply for H-1B visa again. During this one year, does a brief business trip to United States will make me ineligible for another six years of H-1B status?

Answer #3
Please note that you must remain outside of the U.S. for a period of one year once you have exhausted your initial 6 years in H-1B visa status before you are eligible to file a new H-1B petition under the H-1B CAP.

As far as brief trips are concerned, it depends… you should speak with an Immigration Attorney before proceeding with any plans. As long as you remain OUTSIDE of the United States for a period of one year or longer, you are eligible to file for a new H1B under the CAP.


Question # 4 – L1 Intracompany Transferee Visa
As a manager in a multi-national company, I need to apply for a L1A visa to open a new office in United States. What kind of evidence or documents do I need to apply for the visa?

Answer #4
You need a multitude of documents from both the foreign entity and the U.S. entity. You may check the USCIS website at http://www.uscis.gov/ to review specific requirements for the L1 visa. It is also highly recommended that you speak with an experienced Immigration Attorney concerning the specifics of your case.


Question #5 – Employment Based Immigration
Can I file an I-140 in both the E-B2 and E-B3 categories at the same time?

Answer #5
It would be beneficial for you to speak with an Immigration Attorney concerning your reasoning for wanting to file an I-140 in both the EB2 and EB3 categories at the same time. There is a requirement that an original Labor accompany the I-140 petition; however, it is not a necessary roadblock to adjudication if you do not have the original, as there is a box on the I-140 petition that allows you to request that the USCIS obtain a duplicate labor certification from the Department of Labor; however, significant delays may occur in the processing of your I-140 because of this selection. Again, it is highly recommended that you speak with an Attorney to discuss your case and strategy.


Question #6 – Employment Based Immigration
I received my PhD degree last year and I am now working as a research scientist for a large company. Can I apply for my Green Card in the category of EB1 Outstanding Professor or Researcher? If so, how can I prove my "at least three years of experience in teaching and/or research"?

Answer #6
Please contact our office to schedule a consultation with an Immigration Attorney to discuss the specific of your case.


Question #7 – DACA
I’m 30 now and eligible for DACA, but I’m afraid I will get deported once I turn 31. Will this happen to me if I apply?

Answer #7
Do you meet all of the eligibility requirements for DACA? Are you a threat to national security? Do you have a pending removal action against you? There is always a possibility of deportation in the future as an undocumented immigrant in the United States. It is recommended that you speak with an Immigration Attorney to discuss the specifics of your case, as you have not provided sufficient information to provide a solid answer to your question.


Question #8 – Green Card
My adjustment of status case is still pending. I must travel to my country in a few months. How do I apply for Advance Parole and how long does it take?

Answer #8
You must complete Form I-131 and file it with the requisite filing fee with the USCIS. Current processing times are roughly 2-3 months. If you have a serious need to expedite your case, you should speak with a qualified Immigration Attorney or contact the USCIS at 1-800-375-5283.


Question #9 – Green Card
Who is eligible to apply for an Employment Authorization Document?

Answer #9
It depends. Certain aliens who are temporarily in the United States may file this form to request an Employment Authorization Document (EAD). Other aliens who are authorized to work in the United States without restrictions must also use this form to apply for a document that shows such authorization. Please review the USCIS website at http://www.uscis.gov/i-765 for a better understanding of who is eligible for apply for an Employment Authorization Document.


Question #10 – Family Based Immigration
I am a U.S. citizen and recently married a foreign student with F-1 visa. Since my current income is not high, will I need to have a co-sponsor for my wife's Green Card application? What is the income requirement for sponsorship?

Answer #10
Form I-864P is used to determine the minimum income requirement needed to complete Form I-864, Affidavit of Support under Section 213A of the Immigration and Nationality Act. You will need to review the Form I-864P, the Poverty Guidelines at http://www.uscis.gov/sites/default/files/files/form/i-864p.pdf to determine if you need a co-sponsor. You must determine as Sponsor, the size of your household and you will need to be able to support your wife at 125% of the Poverty Guidelines for the size of your household. As an example, if you live alone and are intending to sponsor your wife, which would be counted as 2 for the household size, you must make over $19,662.00 annually, in order to sponsor your spouse’s GC petition.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, October 10, 2014!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

H-2B Cap Count UPDATE - 9/12/14

September 25, 2014

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B cap limit for the second half of FY 2014 (April 1 - September 30) is 33,000. As of the last count (9/12/14); 26,193 beneficiaries have been approved and 229 are pending for a total of 26,422.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (9/12/14); 5,014 beneficiaries have been approved and 1,322 are pending for a total of 6,336.

For further details read, “Cap Count for H-2B Nonimmigrants


Source of Information:

- USCIS.gov (9/18/14) Web Page

- AILA InfoNet Doc. No. 13100840 (posted 9/19/14)

India EB-2 may Retrogress to 2005

September 24, 2014

After the release of the “Visa Bulletin for October 2014” by the Department of State (DOS) the American Immigration Lawyers Association’s (AILA) DOS Liaison Committee had a "check-in" with Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, DOS. They communicate with Mr. Oppenheim monthly to obtain his trend analysis and projections of the immigrant preference categories which are detailed in the monthly DOS visa bulletins.

Mr. Oppenheim states that retrogression (moving backwards) of the EB-2 India priority date appears to be imminent, and could happen as early as this November 2014. The October 2014 priority date for EB-2 India is currently at May 1, 2009. He feels given current demand, the priority date will retrogress, possibly to a date in early 2005. If you are an eligible EB-2 India client (eligible = your priority date is current according to the October 2014 visa bulletin) you should file your adjustment of status applications by the end of October. He warns that the window of opportunity may be closing.

The main reason he anticipates this EB-2 India retrogression is the large number of EB-3 to EB-2 upgrades by Indian-born applicants and this will most likely continue to increase the EB-2 India demand in the coming months.


Source of Information:

AILA InfoNet Doc. No. 14071401 (posted 9/11/14):
Check-in with DOS’s Charlie Oppenheim (9/11/14)

Related Links:

USCIS.gov, 2/19/14, Web Page:
Employment-Based Immigration: Second Preference EB-2

USCIS.gov, 6/14/11, Web Page:
Visa Retrogression

USCIS Teleconference – H-1B Filing Tips and Religious Workers Engagement – 10/9/14

September 23, 2014

The United States Citizenship and Immigration Services (USCIS) will be holding a stakeholder teleconference on Thursday, October 9, 2014 between 11:00am to 12:30 pm (EST). The subject of the event will be a discussion of H-1B filing tips and eligibility requirements for Religious Workers and will include Q&A sessions.

This teleconference will be broken into two 45-minute sessions. The first session will be from 11:00am - 11:45 am and will cover H-1B filing tips. The second session will be from 11:45 am - 12:30 pm and will cover eligibility requirements for religious workers. For more information on this teleconference please review the Meeting Invitation.

Note: This event was previously scheduled for 9/25/14.

Event Information:

DATE: Thursday, October 9, 2014
TIME: 11:00 am - 11:45 am (EST) first session
11:45 am – 12:30 pm (EST) second session

To register for this teleconference, please follow the steps below:

1. Email CSC-CEO@uscis.dhs.gov and reference “H-1B Filing Tips and Religious Workers Engagement RSVP” in the subject line.
2. Include your full name and the organization you represent in the body of the email.
3. Once your registration is processed, you will receive a confirmation email with additional details.


Source of Information:

USCIS.gov, 9/10/14, National Engagement:
- H-1B Filing Tips and Religious Workers Engagement
- Meeting Invitation

MVP "Immigration Q & A Forum" - This Friday, September 26, 2014

September 22, 2014

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, September 26, 2014. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

The U.S. Department of Labor (DOL) updated FY2014 Statistics (Fourth Quarter*)

September 19, 2014

The U.S. Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) has provided FY2014 statistics (fourth quarter*) in the form of program factsheets for each of the major immigration programs. These updated FY2014 statistics (fourth quarter) cover July 2014 through September 2014*.

The link to each program factsheet is listed below:

Permanent Labor Certification Program – Select Statistics, FY 2014 (fourth quarter*)

Prevailing Wage Determination Program – Select Statistics, FY 2014 (fourth quarter*)

H-1B Temporary Visa Program – Select Statistics, FY 2014 (fourth quarter*)

H-2A Temporary Agricultural Visa Program – Select Statistics, FY 2014 (fourth quarter*)

H-2B Temporary Non-agricultural Visa Program – Select Statistics, FY 2014 (fourth quarter*)


* This report included data only up to August 31, 2014!


Source of Information:

OFLC Performance Data

BALCA Affirms Denial Where Web Ad Differed from ETA 9089

September 18, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Multi-Media Artists & Animators.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the position advertised did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and § 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO revealed that the employer’s web advertising specified the position required a minimum of a high school diploma. On the Employer’s ETA Form 9089, it listed a Bachelor’s degree plus 24 months, or 4 years of work experience as an alternative to the degree.

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the government made a clear error in denying the labor application. The CO delivered a second denial and forwarded the case to BALCA for review.

After BALCA’s examination of the case, they affirmed the CO’s denial of labor certification. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” In the web advertising, the position advertised to applicants stated only a high school diploma was required. However, the ETA form mentioned a higher level of education. In its defense, the Employer believed the difference in listings would have caused a problem for applicants if the advertised job would have required stricter educational prerequisites. BALCA thought US workers viewed different requirements for the position then what was listed on the ETA Form. BALCA believed prospective applicants may have overlooked the ad because they thought they may be overqualified for the job.

Celebrating Constitution Day and Citizenship Day with Naturalization Ceremonies – 9/17/14

September 17, 2014

Constitution Day and Citizenship Day are observed on the same day each year, September 17th. This day is set aside to celebrate the signing of the U.S. Constitution in 1787 and also to observe and recognize the responsibilities of all U.S. citizens!

The U.S. Citizenship and Immigration Services (USCIS) will mark this occasion by holding special naturalization ceremonies across the country starting on September 17th and ending on September 23rd. For a full list of 2014 Constitution Day and Citizenship Day naturalization ceremonies, review the USCIS news release, “Celebrating Constitution Day and Citizenship Day with Naturalization Ceremonies”. You can also follow the actives on @USCIS on Twitter and Facebook.com/USCIS.


Source of Information:

USCIS.gov, 9/15/14, News Release (includes list):
Celebrating Constitution Day and Citizenship Day with Naturalization Ceremonies

USCIS.gov, 9/16/14, News Release:
USCIS to Welcome More Than 27,000 New Citizens During Annual Constitution Day and Citizenship Day Celebration

Administrative Appeals Office (AAO) Processing Times - 9/1/14

September 16, 2014

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 9/1/14.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The processing time for an I-129 H-1B Appeal is current; for an I-129 L1 Appeal is current. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is current; for an I-140 EB3 Appeal for a Skilled or Professional Worker is current.

**Most other cases are within USCIS's processing time goal of 6 months or less.


Source of Information:

USCIS.gov, (9/3/14), AAO Processing Times

AILA InfoNet Doc. No. 14090840 (posted 9/8/14)

President Obama Delays Executive Action on Immigration

September 15, 2014

On Saturday, September 6, 2014, President Obama made the announcement that he would delay executive action on Immigration Reform until after the midterm congressional elections.

In a pre-recorded Interview for NBC’s “Meet the Press,” on Sunday, September 7, 2014 President Obama told NBC's Chuck Todd, that the immigration debate was affected by the large number of unaccompanied children from Latin America coming to the U.S. border.

President Obama stated, “What I'm saying is that I'm going to act because it's the right thing for the country." The President also said, "… it's going to be more sustainable and more effective if the public understands what the facts are on immigration, what we've done on unaccompanied children and why it's necessary."

It is still expected that the President will act on this issue before the end of the year.

For more details, review the articles below.


Source of Information:
CNN.com, 9/7/14/, Article (with Video):
Obama: Waiting will make immigration executive action 'more sustainable'

WashingtonPost.com, 9/6/14, Article:
Obama delays executive immigration action until after midterm elections in November

CNN.com, 9/8/14, Article:
Five reasons Obama's delay on immigration is political

NBCnews.com, 9/7/14, Transcript:
Meet the Press Transcript - September 7, 2014