Updated: More Predictions From Charles Oppenheim On Visa Bulletin Movements - Part 2

If you missed part 1, please click here: http://blog.mygcvisa.com/2013/02/new-updates-from-charles-oppenheim-dos.html

Notes From Previous Meetings:

Q. Why did the priority dates move ahead so far in 2012 and then retrogress so drastically?
A. USCIS encouraged Mr. Oppenheim’s office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s. USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand. In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS.

USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this past fiscal year.

The group of cases that were filed in July and August of 2007, when all employment-based categories were made “current,” were all completed by November 2011, and at that point, Mr. Oppenheim’s office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim’s office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending. Mr. Oppenheim’s office has been very clear that they do not like retrogression.

Mr. Oppenheim’s office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3 to EB-2 upgrades. The actual break down was 2,800 from India and 500 from China. All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well.

Updated: More Predictions From Charles Oppenheim On Visa Bulletin Movements

Note: This post was updated with LOTS of new information on March 11, 2013.

Charles Oppenheim in the latest meeting with various attorneys at AILA on January 31, 2013 gave his prediction on the visa numbers and dates for the next few visa bulletins. If you don't know, Charles Oppenheim creates and publishes the monthly visa bulletin. He works at Department of State (DOS) and is the Chief of "Visa Control and Reporting Division".

Here are his thoughts on future movements in the upcoming visa bulletin:

EB1:  EB1 India and EB1 China have already used up their number for fiscal year 2013. However due to spillovers rules, EB1ROW numbers can be transferred to EB1 India and China. This means there would not be a need for a cutoff date for EB1 India and China.

EB2 ROW: This category is expected to remain current throughout the fiscal year. However, depending on demand they may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB2 India: The porting from EB3 India to EB2 India is still very high. In December 2012 alone, EB2 India had 125 cases  approved from year 2003 and earlier. Since the current EB2 India date is 2004, EB2 India can easily reach the annual limit just from people porting from EB3 India. The good news in that there will be (usual) spillovers of number from EB1 category to EB2 category. Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010. EB-2 India demand continues to be very high, and it is possible that the cutoff date may be retrogressed during this fiscal year. It is still unknown how many EB5 and EB1 numbers will fall down to EB2.

Updated: EB Category To Receive 18,000 Additional Visas From FB Category

Please See Update: EB Category To Receive 121,500 Additional Visas From FB Category

Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000.

Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

For fiscal year 2012 (which ended on September 2012), only 208,000 visas were allotted to family based visa petitions; instead of 226,000. This means about 18,000 visas were unused in the family based category.

According to law, any unused visas from family category will flow to employment based category. This means EB category will be getting an additional 18,000 visas in fiscal year 2013 (October 2012 to September 2013). Also see page 1 of demand data (which was updated on Feb 15), where total is set at 158,000 (instead of usual 140,000).

White House Proposes 8-Year Path to Green Card

The White House is circulating a draft immigration bill that would create a new visa for illegal immigrants living in the United States and allow them to become legal permanent residents within eight years, according to a report published online Saturday by USA Today.

President Barack Obama's bill would create a "Lawful Prospective Immigrant" visa for the estimated 11 million illegal immigrants living in the United States. The bill includes more security funding and requires business owners to adopt a system for verifying the immigration status of new hires within four years, the newspaper said.

USA Today reported that the bill would require that immigrants pass a criminal background check, submit biometric information and pay fees to qualify for the new visa. Immigrants who served more than a year in prison for a criminal conviction or were convicted of three or more crimes and were sentenced to a total of 90 days in jail would not be eligible. Crimes committed in other countries that would bar immigrants from legally entering the country would also be ineligible.

What to do after getting green card?

What all things should you do after getting green card?

1) Update SSN card to remove the restrictive language.

2) Update drivers license as per your state policy.

3) Inform all banks, insurance, mortgage about your residency status.In some states/city, you may be eligible for lower rate after getting GC.

4) Submit a new I-9 form and make sure employer runs eVerify on it.

5) Ask for and get an employee verification letter reflecting your continued employment with the sponsor after getting GC indicating salary and place of work, title etc.

6) Scan and keep copies of GC, all supporting approval notices, passports, letters, etc in secure place.

FAQ: EB3 To EB2 Porting - Part 1

Q. Can EB3 application simply be changed to EB2 application?
A. Often individuals ask whether their current EB3 cases can somehow be converted to EB2s. They will usually mention that they had enough education and/or experience to meet the EB2 requirements at the time the EB3 case was filed. The answer to this is simply, “No.” The EB category of any labor certification-based case is set at the beginning, when the labor certification is prepared and filed. The category depends on the requirements specified in the labor certification. If these requirements are at the EB3 level, then the case is filed as an EB3, even if the foreign national beneficiary may have qualifications in terms of the education and work experience sufficient for an EB2 level job.

Q. Can we file new EB2 Case Based on Minimum Job Requirements
A. It is possible for an individual with an EB3 case to have either the existing employer / sponsor or a new employer file a new case in the EB2 category. Of course, the new position must meet the EB2 requirements, and the individual must qualify for the offered position. The starting point must always be with the job requirements, not one’s own education and experience. It is the job that must fit within the EB2 category, as the law requires that the employer specify the minimum education and other qualifications for the specific job. Then, of course, the beneficiary must be able to establish that s/he meets the education and experience required for the job.

Q. Is new EB2 Filing Permissible with Job Change?
A. It is not unusual for an individual with an EB3 case to qualify for EB2. This happens when one acquires additional education and/or experience through the years during which the EB3 case has been pending. Over time, people often are promoted into jobs that may meet the EB2 requirements.
 
Typically, questions about potentially changing to EB2 come from individuals who have reached the point where they have filed their I-485s. They have waited for a number of years, but are suffering under the enormous waiting times in the EB3 category. Many have used AC21 to change jobs, are advancing in their careers, and now hold jobs that could meet the EB2 standards.

FAQ: EB3 To EB2 Porting - Part 2

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/faq-eb3-to-eb2-porting-part-1.html

Check out few more topics below:

I-140 Revocation Concerns

A frequent question from those considering an EB3-to-EB2 upgrade is whether the EB3 petitioning employer can create problems. Specifically, individuals in this situation want to know whether the EB3 employer can withdraw the earlier approved I-140 petition.

Under the law, the I-140 petition may be withdrawn by the employer who filed it, should the employer so choose. The I-140 may be withdrawn even after it has been approved, and even if it was approved several years before. The employer has this option until permanent residence that is based on that employer's filings has been approved. A more pressing question, however, is whether this revocation will make a difference in efforts to complete an EB3-to-EB2 upgrade, namely the employee's ability to transfer or retain the earlier priority date.

General Policy on Priority Date Retention

The long-standing Legacy INS and USCIS policy on retention of EB priority dates after I-140 revocation is favorable. The policy allows individuals to keep their (older) priority dates from approved I-140 petitions even after revocation in most instances. However, some questions arose regarding the continuation and uniform application of this policy.

EB3 To EB2 Porting - Interfile Letter

Please see below interfile letter for EB3 to EB2 porting. Remember to change/update details below (address, application number, etc)

U.S. Citizenship & Immigration Services
Nebraska Service Center
850 S Street
Lincoln, NE 68501
REQUEST TO INTERFILE APPROVED EB-2 I-140 WITH
PENDING I-485 APPLICATIONS
RE: I-485 Applications to Adjust Status to Permanent Resident
Principle Applicant: XXXXXX (A# XXXXXXX)
Receipt #: XXXXXXX
Derivative Applicant: XXXXXXXX (A# XXXXXXXXXX)
Receipt #: SRC-XXXXXXXX

Dear Officer:

Please interfile the approved EB-2 I-140 petition (LIN-XXXXXXX) filed on Mr.XXXXXXXs behalf with the pending I-485 applications filed by Mr. XXXXXX(SRC-XXXXXXX) and his wife, Mrs. XXXXX(SRC-XXXXXXX). We are making this request so that the I-485 applications may be processed according to the availability of immigrant visas in the EB-2 category. As noted by the attached Transfer Notices, these I-485 applications were transferred to the Nebraska Service Center on June 12, 2008. Section 23.2(I)(C) and (D) of the Adjudicators Field Manual provides that an I-485 adjustment application may be converted from one eligibility basis to another if the request is made in writing and there is no break in the continuity of the underlying eligibility for adjustment prior to submission of the conversion request.

Automatic Revalidation Rule Permits Reentry from Canada or Mexico

What Is Automatic Revalidation?
 
The Department of Homeland Security (DHS) U.S. Customs and Border Protection (CBP) has the authority and the responsibility over the admission of travelers to the U.S. Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:

• Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;
• Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

More Information about Automatic Revalidation

For more information about automatic revalidation provisions and reentry to the U.S., visit the International Visitors webpage on the CBP website. Students and Exchange Visitors should review additional important information about travel outside the U.S. and reentry procedures on the DHS Immigration and Customs Enforcement (ICE) website.

Automatic revalidation is not the same as applying for a new visa. If you apply for a new nonimmigrant visa, you cannot take advantage of automatic revalidation.

Who Must Reapply for and Be Reissued a Visa at a U.S. Embassy or Consulate?

This webpage explains which travelers must reapply and be reissued visas when their existing visas have expired, even if they are in possession of valid I-94 forms, in order to gain admission to reenter the U.S.

Many nonimmigrants will need to reapply and be reissued visas to reenter the U.S. when their existing visas have expired, even if they are in possession of valid I-94 forms, because automatic revalidation applies to limited categories of travelers. Refer to the Automatic Revalidation page on the CBP website.

The following temporary visitors whose nonimmigrant visas have expired, but who have valid I-94 forms, must reapply for and be issued nonimmigrant visas prior to their reentry to the U.S., if one or more of the following situations exists (this is not a complete listing): 

The nonimmigrant traveler with an expired nonimmigrant visa (but valid Form I-94):

• Applied for a new visa which has not yet been issued;
• Applied for a new visa and was denied;
• Has been outside of the United States for more than thirty days;
• Has traveled to a country other than Canada, Mexico, or an adjacent island which is not included in the automatic revalidation provisions;
• Is a national of a State Sponsor of Terrorism designated country, including Cuba, Iran, Syria, and Sudan.  Review more about State Sponsors of Terrorism and FAQs on this website;
• Is in possession of an F student visa or J exchange visitor visa and has traveled to Cuba;
• Is in possession of an M student visa and has traveled to a location outside the U.S., other than Canada and Mexico.

Additional Resources – Laws

The automatic revalidation provision of U.S. immigration law is described in both 8 CFR 214.1(b) and 22 CFR 112(d).

Source: http://travel.state.gov/visa/temp/info/info_1299.html

Recommended Reading:
Please see the right side menu for the latest new stories and useful links -->

H.R.717: Reuniting Families Act Bill (Family-Based Immigration Reform) Introduced in the House

Rep. Michael Honda of California with 61 co-sponsors introduced H.R.717, Reuniting Families Act bill to promote family unity. This bill appears to raise a voice for the family-based immigration community which has recently been assaulted by some interest groups and conservative political leaders. 

There is very low chance that this bill will pass the Congress as a piecemeal legislation under the given environment and should rather be taken as a strategy to solicit and consolidate the family-based immigration advocates so that the family unification political agenda does not suffer in the comprehensive immigration reform legislation process. 

Details of the bill is yet to be released but the press release of the sponsor gives a peak into the intent of this legislative bill.

USCIS Update of DACA Processing Statistics as of 02/15/2013

The following show total receipts and approvals as of 02/15/2013. This update also shows the applicants by country.

• Total Received: 423,372
• Approvals: 199,460

The following is the trend. Total applications show a slow-down; however in one month, the USCIS approved 45,056.

Guidance on I-9/Employment Verification for DACA Applicants

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.

According to recent USCIS figures, there have been approximately 438,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

• Must be under the age of 31 as of June 15, 2012;
• Must have arrived in the United States before the age of 16;
• Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
• Must have entered the United States without inspection or have expired status as of June 15, 2012;
• Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
• Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

Prediction: April 2013 Visa Bulletin

For Official April 2013 Visa Bulletin, please click here: http://blog.mygcvisa.com/2013/03/visa-bulletin-april-2013.html

For May 2013 Visa Bulletin Prediction, please click here: http://blog.mygcvisa.com/2013/03/visa-bulletin-may-2013-predictions.html

Please see below prediction for April 2013 Visa Bulletin (for both Family Based and Employment Based):

Quick Summary:

• EB1, EB4, EB 5: Current
• EB2 Rest Of World: Current
  EB2 China: 5 weeks
  EB2 India: 0 week. See article: EB2 India Analysis & Prediction
• EB3: 1 week to 6 weeks
• F1 to F4: 1 week to 12 weeks

Please Note: These numbers currently do not include 18,000 additional visas (spillovers) from FB category to EB category which will be applied this fiscal year 2013.

Family Based:

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	15MAR06	15MAR06	15MAR06	29JUL93	22JAN99
F2A	22DEC10	22DEC10	22DEC10	22DEC10	22DEC10
F2B	15APR05	15APR05	15APR05	15FEB93	08JUL02
F3	01AUG02	01AUG02	01AUG02	22MAR93	01OCT92
F4	29APR01	29APR01	29APR01	29AUG96	22AUG89

Employment Based:

EB2 India: Analysis And Prediction

EB2 India is taking a big hit in visa availability. Checkout the visa bulletin dates for EB2 India from May 2012 to March 2013 below:

May 2012: 15 AUG 2007
June 2012 - Sep 2012: Unavailable
Oct 2012- Mar 2013: 01 SEPT 2004
Apr 2013 - Jun 2013: 01 SEPT 2004 (as predicted by USCIS)
July 2013: 01 SEPT 2004
August 2013: 01 JAN 2008 (most likely)

In the last 9 months, the date has only moved 2 weeks. USCIS has further predicted that the dates may not move at all till June 2013 VB or it may even retrogress further.

What is causing this? The main reason is the supply of visa numbers are fixed by congress to 2800 per country per year in EB2 category. This comes out to 2800/12 =  233 visas per month for EB2 India.

Though the supply of visa numbers is fixed, the demand is not. Due to EB3 to EB2 porting (where people in EB3 category can "upgrade" to EB2), there continues to be high demand for EB2 visas.

USCIS Immigration Application Statistics as of 12/31/2012

 The chart linked below show immigration application receipts increased by 10 percent compared to the number received in December 2011. December 2012 approvals increased by 23 percent, denials decreased by 19 percent, and pending increased by 22% compared to December 2011

It also shows:

• Major receipt volumes in December 2012 include: 95,234 I-765 employment authorizations; 54,733 I-130 immediate/all other petitions; 40,401 I-485 applications to adjust status; 32,836 I-131 travel document/advance parole; 28,645 I-90 green card renewals/replacements; 19,882 I-129 forms filed; 14,089 I-821 temporary protection status.

H.R. 633: Bill To Eliminate Per Country Limit in Employment Based Immigration

Rep. Jason Chaffetz of Utah announced that he has introduced a new bill, H.R. 633 to Eliminate Per Country Limit in Employment-Based Immigration.

He introduced the similar bill H.R. 3012 in the 112th Congress which was successfully passed in the Republican House but failed in the Democratic Senate.

Elimination of per country limit in the employment-based immigration was also introduced by another Senator from Utah, Orrin Hatch, as part of the Immigration Innovation bill.

FAQ: AC21 Portability - Part 1

AC21 Portability is The American Competitiveness in the Twenty-first Century Act of 2000.

Key provisions of AC21 are:

• AC21 exempts applicants that are employed by institutions of higher education, affiliated non-profit entities, and non-profit research organization or governmental research organization, from being counted against the H1B Cap.
• AC21 allows H1B workers to begin working for a new employer upon filing the petition, rather than waiting for approval. Employment authorization shall continue for H1B workers until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
• AC21 allows ability to extend H1B visa beyond 6 years if the employment-based Green Card process began at least 365 days or more before the end of 6th year and is currently ongoing.
• AC21 allows an individual whose application for adjustment of status remained unadjudicated for 180 days or more to remain valid if the individual changes jobs to the same or a similar occupational classifications as the job for which the petition was filed.

Full Text: http://www.uscis.gov/ilink/docView/PUBLAW/HTML/PUBLAW/0-0-0-22204.html

I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-
140 PORTABILITY PROVISIONS OF §106(C) OF AC21 

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21? 
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.

B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued? 
Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved: A. Deny the petition on the merits of the case; and B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability? 
Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors: A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification. B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification. C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases? 
Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases? 
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC 203(b)(1)(C) avail themselves of AC21 §106(c) (8 USC §204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can “same or similar” for multinational employees mean employment with an unrelated company? 
Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported? 
Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA §204(j)? 
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I- 140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification? 
Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days? 
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I- 485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes? 
Answer: An I-140 is no longer valid for porting purposes when: A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable? 
Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing. Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21? Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required). Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions? Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

Continue to Part 2: http://topimmigrationnews.blogspot.com/2013/02/faq-ac-portability-part-2.html

FAQ: AC Portability - Part 2

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/faq-ac21-portability-part-1.html

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF §106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT 

Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years? 
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when: A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or B. 365 days or more have passed since the filing of an EB immigrant petition. Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed? 
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay? 
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to: A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; B. Deny the EB immigrant petition, or C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status. If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21? 
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit? 
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed? 
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago? 
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status? 
Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit? 
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program? 
 Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT 

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21? 
Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years? 
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted? 
Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY PROVISIONS 

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”? 
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be: Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.” In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)? 
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied? 
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

PDF Link

Perm Processing Statistics - FY2013 YTD

USCIS Visa Bulletin Prediction For 2013 (Apr - Jun)

Charles Oppenheim, (Chief of the DOS Immigrant Visa Control and Reporting Division), who publishes the visa bulletin every month recently released his visa bulletin prediction for April - June 2013. Please see details below:

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:

• F1:  Three or four weeks
• F2A: Three to five weeks
• F2B: Three to five weeks
• F3:  One or two weeks
• F4:  Up to two weeks

March 2013 Visa Bulletin

For official April 2013 Visa Bulletin, please click here: http://blog.mygcvisa.com/2013/03/visa-bulletin-april-2013.html

March 2013 Visa bulletin has been released (valid from March 1 to March 31 only). Please see below for more details.

Family Based:

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	15FEB06	15FEB06	15FEB06	22JUL93	15OCT98
F2A	22NOV10	22NOV10	22NOV10	15NOV10	22NOV10
F2B	01MAR05	01MAR05	01MAR05	15JAN93	08JUN02
F3	15JUL02	15JUL02	15JUL02	15MAR93	15SEP92
F4	22APR01	22APR01	22APR01	15AUG96	15JUL89

How a Bill Becomes a Law

Creating laws is the U.S. House of Representatives’ and U.S. Senators' most important job. All laws in the United States begin as bills. Before a bill can become a law, it must be approved by the U.S. House of Representatives, the U.S. Senate, and the President. Let’s follow a bill’s journey to become law.

 

The Bill Begins

Laws begin as ideas. These ideas may come from a Representative/Senator —or from a citizen like you. Citizens who have ideas for laws can contact their Representatives to discuss their ideas. If the Representatives agree, they research the ideas and write them into bills.

 

The Bill Is Proposed

When a Representative has written a bill, the bill needs a sponsor. The Representative talks with other Representatives about the bill in hopes of getting their support for it. Once a bill has a sponsor and the support of some of the Representatives, it is ready to be introduced.

Collection Of Latest Immigration Bills

Since a lot of immigration bills have and are still been introduced in Congress, this post will summarize the important immigration bills released this year 2013 (with the new congress).

When the comprehensive immigration reform legislation process is in place as the nation's focal point, these piecemeal immigration bills are usually introduced not for the purpose of being enacted as a separate legislation but for the purpose of calling attention as well as addressing direction of that component of the reform for compromise in the comprehensive immigration reform legislation process.

The other reasoning for introducing piecemeal bills is that in case congress fails to pass CIR, these standalone bills could have a higher chance of been passed by both houses of congress and eventually signed into law.

Please note that any bills that were introduced in Congress before January 1, 2013 are no longer valid.  Congress (House of Representative) are (re)elected every 2 years (Jan 2011 to Dec 2012) and a bill is valid during this term only. Once a new congress comes in (from Jan 4, 2013), all older bills are discarded and they have to be reintroduced in the new Congress.

Below are the list of immigration bills introduced in new Congress (since January 4, 2013). Please note that these are bills only (not laws). You may want to read our article on how a bill becomes a law.

Bills starting with S (S.1, S.169) are introduced in Senate. Bills starting with H.R. are introduced in House of Representative. USCIS administrative fixes means changes which USCIS can do without waiting for Congress to pass the bill.

March 2013 Demand Data

For April 2013 Demand Data, please click here: http://topimmigrationnews.blogspot.com/2013/03/demand-data-for-april-2013-visa-bulletin.html

EB Demand Data For March 2013 Visa Bulletin has just been released. Please see details below:

Comparison of Form 8938 and FBAR Requirements

When reporting foreign bank accounts and other financial assets to IRS, some people may have to submit both FBAR and Form 8938.

The new Form 8938 filing requirement does not replace or otherwise affect a taxpayer’s obligation to file Form TD F 90-22.1 (Report of Foreign Bank and Financial Accounts). Individuals must file each form for which they meet the relevant reporting threshold.

	Form 8938, Statement of Specified Foreign Financial Assets	Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR)
Who Must File?	Specified individuals, which include U.S citizens, resident aliens, and certain non-resident aliens that have an interest in specified foreign financial assets and meet the reporting threshold	U.S. persons, which include U.S. citizens, resident aliens, trusts, estates, and domestic entities that have an interest in foreign financial accounts and meet the reporting threshold
Does the United States include U.S. territories?	No	Yes, resident aliens of U.S territories and U.S. territory entities are subject to FBAR reporting
Reporting Threshold (Total Value of Assets)	$50,000 on the last day of the tax year or $75,000 at any time during the tax year (higher threshold amounts apply to married individuals filing jointly and individuals living abroad)	$10,000 at any time during the calendar year
When do you have an interest in an account or asset?	If any income, gains, losses, deductions, credits, gross proceeds, or distributions from holding or disposing of the account or asset are or would be required to be reported, included, or otherwise reflected on your income tax return	Financial interest: you are the owner of record or holder of legal title; the owner of record or holder of legal title is your agent or representative; you have a sufficient interest in the entity that is the owner of record or holder of legal title. Signature authority: you have authority to control the disposition of the assets in the account by direct communication with the financial institution maintaining the account. See instructions for further details.

FBAR: Reporting Foreign Accounts To IRS - Part 1

Quick Summary:

You are required to file form FBAR, if you are (1) Resident of US (how to find out) AND (2) You have one ore more foreign bank accounts (outside USA) AND (3) the combined total of all foreign accounts exceeded $10,000 at ANY point of time (even for one day). There are exceptions to this rule (if you are in military, etc).

If the total in all your foreign accounts never exceeded $10,000 anytime last year, then you are not required to file FBAR. As ALWAYS, talk to your CPA; since tax rules are complex and always changing. Some people may also have to submit form 8938 (see difference).

Note: FBAR form is to REPORT taxes to IRS. To actually PAY taxes to IRS, you will use the usual forms (1040, etc). The amount can be reported in the interest section (1099 INT). Again check with CPA. You can submit FBAR form online.

FBAR Overview:

If you have a financial interest in or signature authority over a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account, the Bank Secrecy Act may require you to report the account yearly to the Internal Revenue Service by filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR).

FBAR: Reporting Foreign Accounts To IRS - Part 2

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/fbar-reporting-foreign-accounts-to-irs.html

Frequently Asked Questions:

Q. What is an FBAR?

A. An FBAR is a Report of Foreign Bank and Financial Accounts. The form number is TD F 90-22.1 (PDF).

Q. Who must file an FBAR?

A. Any United States person who has a financial interest in or signature authority or other authority over any financial account in a foreign country, if the aggregate value of these accounts exceeds $10,000 at any time during the calendar year. See also Notice 2010-23.

Q. What is a foreign country?

A. A “foreign country” includes all geographical areas outside the United States, the commonwealth of Puerto Rico, the commonwealth of the Northern Mariana Islands, and the territories and possessions of the United States (including Guam, American Samoa, and the United States Virgin Islands).

Q. What is a United States person?

A. “United States person” includes a citizen or resident of the United States, a domestic partnership, a domestic corporation, and a domestic estate or trust. See Announcement 2010-16.

Q. Is a single-member LLC, which is a disregarded entity for U.S. tax purposes, a United States person for FBAR purposes?

A. Yes, the tax rules concerning disregarded entities do not apply with respect to the FBAR reporting requirement. FBARs are required under Title 31, not under any provisions of the Internal Revenue Code.

FBAR: Reporting Foreign Accounts To IRS - Part 3

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/fbar-reporting-foreign-accounts-to-irs.html

Q. How does an FBAR filer amend a previously filed FBAR?

A. FBAR filers can amend a previously filed FBAR by:

• Checking the Amended box in the upper right-hand corner of the first page of the form;
• Making the needed additions or corrections;
• Stapling it to a copy of the original FBAR; and
• Attaching a statement explaining the additions or corrections.

Q. What happens if an account holder is required to file an FBAR and fails to do so?

A. Failure to file an FBAR when required to do so may potentially result in civil penalties, criminal penalties or both. If you learn you were required to file FBARs for earlier years, you should file the delinquent FBAR reports and attach a statement explaining why the reports are filed late. No penalty will be asserted if the IRS determines that the late filings were due to reasonable cause. Keep copies of what you send for your records.

Q. Can cumulative FBAR penalties exceed the amount in a taxpayer's foreign accounts?

A. Yes, under the penalty provisions found in 31 U.S.C. 5314(a)(5), it is possible to assert civil penalties for FBAR violations in amounts that exceed the balance in the foreign financial account.

Q. How long should account holders retain records of the foreign accounts?

A. Records of accounts required to be reported on an FBAR must be retained for a period of five years.  Failure to maintain required records may result in civil penalties,  criminal penalties or both.

FBAR: Reporting Foreign Accounts To IRS - Part 4

If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/fbar-reporting-foreign-accounts-to-irs.html

Q. What is a financial account?

A. A “financial account” includes any bank, securities, securities derivatives or other financial instruments accounts. The term includes any savings, demand, checking, deposit or any other account maintained with a financial institution or other person engaged in the business of a financial institution. Financial account also generally includes any accounts in which the assets are held in a commingled fund, and the account owner holds an equity interest in the fund (including mutual funds). Individual bonds, notes, or stock certificates held by the filer are not a financial account nor is an unsecured loan to a foreign trade or business that is not a financial institution.

Q. What is meant by the term “commingled funds?”

A. The reference to “commingled fund” appears in the definition of the term “financial account” in the FBAR instructions. The instructions state that the term “financial account” generally encompasses accounts in which the assets are held in a commingled fund and the account owner holds an equity interest in the fund.

Persons with a financial interest in, or signature authority over, a foreign commingled fund that is a mutual fund are required to file an FBAR unless another filing exception, as provided in the FBAR instructions or other relevant guidance, applies. The IRS will not interpret the term “commingled fund” as applying to funds other than mutual funds with respect to FBARs for calendar year 2009 and prior years. Thus, the IRS will not apply its enforcement authority adversely in the case of persons with a financial interest in, or signature authority over, any other foreign commingled fund with respect to that account for calendar year 2009 and earlier calendar years, including hedge funds and private equity funds. Notice 2010-23.

Q. Is an FBAR required for accounts maintained with financial institutions located in a foreign country if the accounts hold noncash assets, such as gold?

A. Yes. An account with a financial institution that is located in a foreign country is a financial account for FBAR purposes whether the account holds cash or non-monetary assets.

Q. What does “maximum value of account” mean (for Box 15 on the FBAR)?

A. The maximum value of account is the largest amount (not the average amount) of currency and nonmonetary assets that appear on any quarterly or more frequent account statements issued for the applicable year. If periodic account statements are not issued, the maximum account value is the largest amount of currency or nonmonetary assets in the account at any time during the year. Convert foreign currency by using the official exchange rate at the end of the year.

Though the FBAR instructions direct filers to use the official exchange rate, the Internal Revenue Service has no official exchange rate and generally accepts any posted exchange rate that is used consistently. For exchange rates, check the U.S. Treasury Web site or other commercial sites.

FAQ: Filing Unemployment - Part 1

Quick Summary:

Each state has its own unemployment benefit laws. In all 50 states, you have to be authorized to work in US, before you can claim unemployment (people on visas such as B1, B2, H4, etc are not eligible to claim unemployment, since they are not authorized to work). In few states, people on H1 are also eligible to claim unemployment benefits.

If you are not a US citizen, the state government will typically contact USCIS to verify immigration eligibility.If you claim unemployment under H1, this means you are no longer legally employed (and hence this could mean you are out of status).

This can affect your green card process (since you are no longer legally employed).  ALWAYS talk to your lawyer before applying for unemployment benefits while been on a visa. ICE, after been notified, can deport people who are out of status.

The FAQ information below is specific to state of California.  Employment benefits are different for different states. Hence please consider this FAQ as a generic guideline and talk to your  lawyer if you are considering applying for employment benefits (on a non-immigrant visa or EAD)

What are the eligibility requirements?

To be entitled to benefits you must be:

• Out of work due to no fault of their own.
• Physically able to work.
• Actively seeking work.
• Ready to accept work.