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I-140

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I-140 EAD/Job Portability Final Rule Released – Analysis and Overview of the Upcoming Changes and System Fixes

By | 2017-05-20T21:47:03+00:00 November 17th, 2016|AC21, I-140, News, News Alert|

The Department of Homeland Security (“DHS”) has just released the final text (also copy of Federal Register version) of the rule seeking to improve certain aspects of the employment-based immigration system.  The new rule seeks to implement certain changes to the non-immigrant and immigrant visas in order to better allow US employers to retain foreign workers.   The final rule also provides increased flexibility to foreign workers, especially from India and China, during their U.S. employment-based immigration process.  The new rule will become effective 60 days after its November 18, 2016 publication in the Federal Register, or on January 17, 2017. (more…)

Appeals Court Creates Right of I-140 Revocation Notice to New AC21 Sponsor Employer

By | 2017-05-20T21:47:04+00:00 August 18th, 2016|AOS, Employers, I-140, I-485, News|

In an August 3, 2016 opinion, the U.S. Court of Appeals for the Seventh Circuit held that in situations where beneficiaries of I-140 petition have ported their I-485 adjustment of status application to a new employer pursuant to the AC21 portability provisions, USCIS is required to provide a notice of its intent to revoke the earlier I-140 petition to the new AC21 employer but not to the beneficiary.

(more…)

US Appeals Court Creates a Notification Right to Affected Parties Prior to I-140 Revocation

By | 2017-05-20T21:47:07+00:00 January 10th, 2016|Articles, I-140, I-485, News|

In a December 30, 2015 opinion, the Second Circuit Court of Appeals has handed a decision (Mantena v. Johnson) which requires USCIS to provide notice of its intent to revoke an immigrant I-140 petition to certain parties who may be affected by the I-140 revocation.     Specifically, this notification provision would apply to beneficiaries of an approved I-140 petition who have been able to file an I-485 adjustment of status application and who have subsequently used the AC21 portability provisions to port the I-485 to a new employer.  The notification may also extend to the new employer as well.

Update (8/18/2016):   the Seventh Circuit Court of Appeals has issues a similar but further-reaching decision on the notification right in connection with I-140 revocation proceeding after I-485 AC21 porting to a new employer.  See details.

(more…)

I-140 Portability/EAD Draft Rule Released – Analysis and Overview of the Proposed Changes and System Fixes

By | 2017-05-20T21:47:07+00:00 January 10th, 2016|Articles, H-1B, I-140, Immigration Reform, News, News Alert|

On November 17, 2016, USCIS released the final version of this rule.

On December 31, 2015 USCIS released a draft of the proposed and long-awaited rule seeking to improve certain aspects of the employment-based immigration system. The proposed rule seeks to implement certain changes to the non-immigrant and immigrant visas in order to better allow US employers to retain foreign workers.   The proposed rule also provides increased flexibility to foreign workers, especially from India and China, during their U.S. employment-based immigration process. (more…)

EB-1 Processing Statistics

By | 2011-08-25T12:45:43+00:00 August 25th, 2011|Articles, EB-1, I-140, News|

USCIS has provided some interesting statistics relating to the processing of Form I-140 petitions for classification of foreign nationals under the employment-based first (EB-1) category.    The statistics reflect the number of receipts, approvals, denials and RFEs issued during a fiscal year and are helpful in understanding general EB-1 adjudication trends.

The EB-1 Statistics

Texas Service Center is More Popular.  The Texas Service Center is clearly the more popular service center, judging by the number of filings.   It received between two and three times the amount of EB-1 applications filed with the Nebraska Service Center.  For example, the Texas Service Center received 9,981 EB-1 I-140 cases in FY2011 (until 19, 2011), while Nebraska received 3,811 for the same period.

Number of EB-1 Filings Remains Steady.  Because the FY2011 data is for the year until July 19, 2011 (or based on approximately 10 months), the overall number of filings in 2010 should end up being similar to the total number of EB-1 filings in 2011, when the reported EB-1 FY2011 numbers are calculated on yearly basis.

Comparison of the Rate of RFEs and Denials.   It is also interesting to note that in 2010 Nebraska had a significantly higher rate of RFEs and denials across all EB-1 categories compared to Texas.  For example, in 2010, Nebraska issued RFEs in 67% of the cases (Texas was at 26%) and denials in 36% (Texas was at 18%).   However, so far in 2011, Nebraska is generally at par with Texas.  So far in 2011, Nebraska issued RFE in 38% (Texas is at 29%) and denies 16% (Texas is at 13%).     It should be noted, however, that some of these numbers carry over from one fiscal year to another – for example, an RFE may be reflected in one year’s numbers, while a denial would be reflected during next year’s number simply because the denial was issued after the new fiscal year has started.   As a result, a scientifically-accurate comparison of percentages across fiscal years is not possible based on this data.

Conclusion

While we recognize that the EB-1 adjudication statistics reported by USCIS do not permit accurate calculation of percentage chances of RFE, denials and approvals, the numbers are very helpful nonetheless in understanding trends at the Texas and Nebraska Service Centers.    Based on these numbers, the Nebraska Service Center’s rate of favorable adjudications is inching closer to the Texas Service Center.   Also, we note that the rate of filings has remained steady over the past two years.

Our office handles a number of EB-1 filings in all subcategories and we are happy to review and assist with EB-1 cases.   Please feel free to contact us for review and analysis of EB-1 cases.

Texas Service Center Premium Processing Unit Sends Old I-140 Receipt and Approval Email Notices (Updated)

By | 2011-04-01T17:10:50+00:00 April 1st, 2011|Articles, I-140, News, USCIS|

It may seem like an April Fools Day joke at first sight, but apparently it is not.  The Texas Service Center has been issuing and emailing premium processing receipt and approval notices for I-140 cases filed as far back as April 2010.

Example of I-140 Email Notice

The emails (delivered on April 1, 2011) look something like this:

Receipt Notices

The Texas Service Center has received the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Date Received: 05/04/2010
Petitioner: PETITIONER, INC.
Priority Date: To Be Determined
Beneficiary: BENEFICIARY NAME

The Form I-797 Receipt Notice will follow in the mail.

Approval Notices

The Texas Service Center has approved the following
I-140 Immigrant Petition for Alien Worker
that had been filed under the Premium Processing Service:

Receipt Number: SRCXXXXXXXX
Petitioner: PETITIONER COMPANY, INC.
Priority Date: 06/01/09

Beneficiary: BENEFICIARY NAME
DOB: 0X/0X/71
Classification: E21

The form I-797 Approval Notice will follow in the mail.

Please note that this e-mail message is being sent as a
courtesy and cannot be used as evidence of nonimmigrant
status. Nor can this message be used as evidence to procure
an immigrant visa.

Pending and Approved I-140 Cases Seem to be Unaffected

These notices seem to be for cases previously filed with the TSC’s premium processing unit for which email receipt and approval notices were never issued.   Our office has handled a number of TSC filings, including in the relevant period of the past 12 months, and we have never received the (expected) I-140 receipt or approval notices.   Looks like they are arriving now, months after the cases have been processed and approved.  To our knowledge, paper I-140 receipt and approval notices from TSC have not been affected.

Explanation of the Old I-140 Email Notices

There has not been an official explanation by TSC or USCIS yet.  An unconfirmed theory for the reason behind this sudden deluge of I-140 receipt and approval email notices is a glitch with TSC’s email servers.  It is possible that the outgoing email server at TSC was misconfigured and was holding all outgoing I-140 receipt and approval notice emails.   In an interesting coincidence, the problem seems to have been “fixed” on April 1st.

Update from USCIS

April 1, 2011, 5:12 pm.   USCIS has more or less confirmed our theory that this sudden outburst of delayed emails was caused by software.

“The program that sends the automated emails on premium processing cases has been off-line for some time. A new version of the program was deployed today and it appears to be catching up on emails for older cases that didn’t receive any email notifications. For cases already completed, the email notifications can be disregarded.

We are working with our Information Technology colleagues to research and confirm if emails on recent / current cases are also being queued for generation.

Sorry for any confusion this may have caused.”

Update on EB-2 Visa Availability: Low EB-1 Demand to Cause EB-2 India to Advance

By | 2017-05-20T21:48:19+00:00 March 30th, 2011|Articles, I-140, I-485, News, Visa Bulletin|

A recent update from USCIS and Charles Oppenheim at the Department of State (the person who is responsible for the Visa Bulletin and visa number allocations) should provide some hope to applicants in some categories, but most notably to the EB-2 India category.

Low EB-1 Demand to Cause Visa Number Spillover to EB-2

USCIS has reported that the demand for EB-1 visa numbers has dropped significantly since October 1, 2010.   As a result, the planned visa number demand in this category can be adjusted downwards.  By doing this, the unused EB-1 numbers can be allocated to other categories.  This is Mr. Oppenheim’s statement:

[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

EB-2 India Expected to Move Forward (Substantially?) in the May 2011 Visa Bulletin

Based on Mr. Oppenheim’s comments, it is expected that the EB-2 India category will move forward in the May 2011 Visa Bulletin (please see our Visa Bulletin topic page where updates are posted immediately).  This should be a welcome development for the thousands of EB-2 India filers who have been waiting for 8 months now without any movement in this category.   While we cannot estimate by how much EB-2 India will advance, we hope that the move would be substantial, based on the 12,000 available visa numbers mentioned by Mr. Oppenheim.

Porting of EB-3 India to EB-2 India to Continue — Heavy Demand in EB-2 Expected

Our office has been advising over the past couple of years, and we continue to do so, that all EB-3 India filers who are now eligible to port their priority dates into EB-2 to do so.   In many cases porting is extremely helpful in advancing one’s green card application substantially, especially when the EB-3 priority date, as ported to EB-2 becomes current, and especially considering a possible significant forward movement in EB-2 India.   Please contact us if we can provide analysis of your ability to port your EB-3 priority date into EB-2.

EB-2 India Expected Forward Movement to Cause Increase in I-485 Filings and Interfilings

We also expect the EB-2 India forward priority date movement to cause an increase in I-485 adjustment of status filings for both primary beneficiaries or for family members who have not been able to file I-485 previously (most often during the summer of 2007).

Additionally, many I-485s remain pending and “connected” to I-140s which reflect an older EB-3 priority date which is not current.  If a subsequent EB-2 I-140 has been filed and if the earlier EB-3 priority date has been ported into the new I-140, an “interfiling” may be needed to notify USCIS and have them “connect” the pending I-485 with the new, and current, EB-2 I-140.

Please contact our office if we can help you prepare and file your I-485 application or if you need assistance with interfiling your pending I-485 to a new and (soon to be) current EB-2 I-140.   We also invite you to subscribe to our free weekly immigration newsletter to obtain alerts of related news and developments.

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

By | 2010-05-17T09:26:55+00:00 May 17th, 2010|AAO, Articles, I-140, I-290B, News|

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 Decision on Substituted Labor Certifications

By | 2017-05-20T21:48:50+00:00 April 3rd, 2010|AAO, Articles, I-140, I-485, News, Policy|

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.