AAO Processing Times Report (July 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of July 1, 2010.  Overall, there is not much change in comparison to the April 1, 2010 report (the last we reported).

Among the most notable AAO processing times:

• H-1B appeal takes 12 months (decrease by two months compared to April 1, 2010);
• I-140 EB1 Extraordinary Ability takes less 7 months (one month increase), Multinational Manager or Executive takes 15 months (increase by three months) while EB1 Outstanding Professor or Researcher category takes 6 months (increase by one month);
• I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 6 months (increase by one month); and
• I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 23 months on appeal (increase by one month).

Read the full AAO Processing Times report.

Filing a New I-140 When Another I-140 Is Pending on Appeal

In addition to the numerous inquiries on filing a new I-140 when a previous I-140 is pending on appeal, our office handles a number of such new I-140 filings.   Pursuant to USCIS guidance, a previously approved labor certification which was timely used to file an I-140 can, in many circumstances, be subsequently used to file a new I-140 if the initial I-140 was denied.   Many initial I-140 denials are appealed with the Administrative Appeals Office (AAO); in such cases, the issue becomes whether the petitioner can file a new I-140 while the initial I-140 is pending on appeal.

Background

USCIS current policy is that when a denied I-140 is appealed and is sent by a service center to the AAO for adjudication (which can take up to two years months), the service center will hold in abeyance a newly refiled I-140 the same Beneficiary in the same EB classification.  The question becomes whether a new I-140 for the same beneficiary but for a different classification would be also held in abeyance?

Recent Texas Service Center Guidance

A recent guidance from the Texas Service Center (TSC) has indicated that whether or not an I-140 filed for a Beneficiary in a different classification will be held in abeyance while an appeal is pending is determined on a case-by-case basis and depends on the reason for the initial denial.   As an example, if an I-140 is denied for lack of ability to pay, and the ability to pay issue is appealed, a subsequent identical I-140 filing, even in a different classification, would typically be held in abeyance pending the outcome of the appeal.

Considering the long AAO processing times (20-24 months for I-140 appeals), before an I-140 appeal is filed, it is important to evaluate the alternatives and the options of filing a new I-140 without appealing the previously-denied I-140.  Many beneficiaries need to file an appeal in order to be able to obtain H-1B extension benefits; however, if this is not a factor, appealing I-140 may not provide much of a strategic benefit, in fact, it may only delay the I-140 process.

How We Can Help

Our office handles a number of I-290B I-140 AAO appeals and we would be happy to review your case and advise you on the best options.  Please do not hesitate to contact us for a free initial consultation.  Also, please feel free to subscribe to our weekly newsletter to receive free immigration law updates.

AAO Processing Times Report (April 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of April 1, 2010.  Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 14 months (increase by one month compared to March 1, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 5 months (increase by one month);
• I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 5 months (increase by one month); and
• I-140 EB3 Skilled Worker takes 24 months (no change) while EB3 Other Worker takes 22 months on appeal (no change).

Read the full AAO Processing Times report.

AAO Decision on Substituted Labor Certifications

In a decision dated as of March 26, 2010, the Administrative Appeals Office (AAO) has spelled out what we think is an an important policy change affecting employment-based permanent residency applicants who are beneficiaries of a labor certification either as a substitute or as the initial beneficiary of a subsequently-substituted labor certification.

Brief Background on Labor Certification Substitutions

Until July 16, 2007, relevant DOL and USCIS rules permitted an employer to “substitute” the beneficiary of an already approved labor certification.  As a result, in a number of labor certifications, approved before July 16, 2007, there may be more than one beneficiaries, more than one of which may be awaiting a visa number to become available and to be able to adjust status to a permanent resident.

Factual Background of the AAO Decision

The facts of the case underlying the recent AAO decision are as follows:  a company filed a labor certification on behalf of an Employee A.   The labor certification was approved and the employer filed and secured approval of a Form I-140 for the benefit of Employee A.   Employee A subsequently filed adjustment of status application and waits for a visa number to become available.

After Employee A’s I-140 is approved and after Employee A’s I-485 is pending for more than 180 days, making Employee A eligible for AC21 portability, the employer decides that it no longer wishes to support Employee A’s permanent residency application and withdraws Employee A’s approved I-140.  At the same time, the employer notifies USCIS that it wishes to substitute the beneficiary of its approved labor certification with Employee B.  Subsequently, the employer obtains approval of I-140 on behalf of Employee B and Employee B is able to adjust her status in the U.S. to permanent resident, while Employee A is still awaiting for a visa number.

AAO Decision – Only One Person Can Be Beneficiary of the Labor Certification

The AAO, after reviewing congressional intent and USCIS memoranda on the subject, concludes that it is impossible that Congress has intended that more than one beneficiary can obtain a permanent residency based on one labor certification.  As a result, it held that Employee A, even though she is eligible for AC21 portability and even though that she was the initial labor certification beneficiary, is not eligible for adjustment of status because Employee B has already become permanent resident on the basis of the same labor certification.

Who is Affected and Conclusion

This decision does not affect a large percentage of the currently pending adjustment of status applications.  However, those substituted beneficiaries who are currently waiting for a visa number, may be affected very negatively by this decision.  Many substituted labor certification beneficiaries wait for a visa number in the comfort that their application is portable under AC21 even if their employer has substituted them out of their labor certification.   However, the danger is that USCIS will look at the procedure as a “race to adjust status” whereby the substituted beneficiary who adjust status first gets the benefit of the labor certification while everybody else is in danger of adjustment of status denial.

AAO Processing Times Report (March 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of March 1, 2010.  Overall, there is not much change in comparison to the February 1, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (decrease by one month compared to February 1, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (no change) while EB1 Outstanding Professor or Researcher category takes 4 months (decrease by three months);
• I-140 EB2 (Advanced Degree) takes 24 months (decrease by one month) while EB2 (NIW) takes 4 months (decrease by three months); and
• I-140 EB3 Skilled Worker takes 24 months (increase by one month) while EB3 Other Worker takes 22 months on appeal (increase by one month).

Read the full AAO Processing Times report.

AAO Processing Times Report (February 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of February 1, 2010.  Overall, there is not much change in comparison to the January 4, 2010 report.

Among the most notable AAO processing times:

• H-1B appeal takes 14 months (increase by one month compared to January 4, 2010);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 12 months (increase by one month) while EB1 Outstanding Professor or Researcher category takes 7 months (increase by one month);
• I-140 EB2 (Advanced Degree) takes 25 months (increase by one month) while EB2 (NIW) takes 7 months (increase by one month); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 21 months on appeal (increase by two months).

Read the full AAO Processing Times report.

AAO Processing Times Report (January 4, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of January 4, 2010.  Overall, there is not much change in comparison to the December 2, 2009 report.

Among the most notable AAO processing times:

• H-1B appeal takes 13 months (increase by one compared to December 2, 2009);
• I-140 EB1 Extraordinary Ability takes less than 6 months (no change), Multinational Manager or Executive takes 11 months (no change) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 24 months (two months improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.

AAO Processing Times Report (December 2, 2009)

Our firm handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of December 2, 2009  Overall, we notice delays across all categories.

Among the most notable AAO processing times:

• H-1B appeal takes 12 months (one month improvement compared to the November 1, 2009);
• I-140 EB1 Extraordinary Ability takes 4 months (one month improvement), Multinational Manager or Executive takes 11 months (increase by one month) while EB1 Outstanding Professor or Researcher category is current (meaning less than 6 months);
• I-140 EB2 (Advanced Degree) takes 26 months (one month improvement) while EB2 (NIW) takes 6 months (or current, meaning less than 6 months); and
• I-140 EB3 Skilled Worker takes 23 months (no change) while EB3 Other Worker takes 23 months on appeal (no change).

Read the full AAO Processing Times report.