Employment based permanent residency

The U.S. State Department has recently indicated that it expects the EB-2 worldwide category to become current on October 1, 2012. Therefore, EB-2 applicants who were not born in India or China should be current on October 1, 2012.

The State Department also indicated that it expected EB-2 numbers for people born in India or China to become available with a priority date of approximately August or September of 2007 and they do not expect much forward movement in these categories for the first half of the fiscal year.

Hopefully, some day there will be a legislative fix for visa backlogs for EB-2 applicants born in India or China and all EB-3 applicants.

The U.S. State Department has recently indicated that it expects the EB-2 worldwide category to become current on October 1, 2012. Therefore, EB-2 applicants who were not born in India or China should be current on October 1, 2012.

The State Department also indicated that it expected EB-2 numbers for people born in India or China to become available with a priority date of approximately August or September of 2007 and they do not expect much forward movement in these categories for the first half of the fiscal year.

Hopefully, some day there will be a legislative fix for visa backlogs for EB-2 applicants born in India or China and all EB-3 applicants.

The State Department has recently announced that they anticipate that the EB-2 permanent resident visa numbers for people born in China and India will retrogress to sometime in 2007. Lately, the EB-2 category for people born in China and India moved forward dramatically. Apparently, the State Department has moved forward too quickly and needs to retrogress the numbers to make sure they do not issue more than the allotted visa numbers. The retrogression in EB-2 numbers is anticipated to take place in May or June 2012. Because of a high demand in the EB-1 category, it is not expected that any numbers will trickle down from that category to the EB-2 pool. Additionally, there is no word as to whether the bill introduced to address visa backlogs will pass both Houses of Congress and become law. Therefore, permanent resident applicants from China and India in the EB-2 category should engage in immigration strategic planning to deal with the expected retrogression in EB-2 numbers.

The State Department recently released the February 2012 Visa Bulletin which continues the trend of rapid forward movement of EB-2 priority dates for Indian and Chinese nationals. In February, the numbers will move forward by 12 months to January 1, 2010. Therefore, individuals with a priority date on or before January 1, 2010 will be able to file for adjustment of status as of February 1, 2012.

Our office will be assisting many existing and new clients in the preparation of adjustment of status applications. We look forward to the continuing forward movement of the priority dates in this category.

Unfortunately, the EB-3 priority date for all countries advanced in a more modest fashion by moving forward approximately three weeks.

The U.S. Department of Labor has announced that it is increasing audits on labor certification applications. It has reported that 25% of all labor certification applications are now receiving audits. Additionally, an increasing number of employers are being required to complete the recruitment process under the supervision of the DOL.

The House of Representatives passed an immigration bill on November 29, 2011 that, if enacted into law, will eliminate the per-country numerical limitations for employment-based immigrant visas. The bill, entitled the “Fairness for High-Skilled Immigrants Act” (H.R. 3012), passed the House by a vote of 389-15.

Each year, approximately 140,000 employment-based immigrant visas are made available to qualified applicants. The law currently imposes a per-country limit on the distribution of these visas; no more than 7 percent of available visas may be issued to natives of any one country in a given fiscal year. H.R. 3012 proposes to amend the Immigration and Nationality Act by eliminating the per-country percentage cap. As written, the bill would gradually phase out the per-county cap over a three year period, from 2012 to 2015.

If passed into law, H.R. 3012 will be most beneficial to Indian and Chinese employment-based immigrant visa applicants. Due to the high number of annual applicants from India and China, there are currently long backlogs in the second (EB-2) and third (EB-3) employment-based preference categories for these two countries. For example, USCIS is currently adjudicating EB-3 petitions filed on behalf of Indian beneficiaries with priority dates on or before August 1, 2002. This corresponds to a backlog of roughly nine years, although in reality the backlog could be much longer. If H.R. 3012 is signed into law, these backlogs would be reduced substantially.

H.R. 3012 will now be referred to the Senate where it will be sent to committee for review, debated, and voted upon. If the Senate amends the bill significantly, a conference committee composed of members of both chambers will be formed in an attempt to reconcile differences between the Senate and House versions of the bill. If the House and Senate approve the bill in identical form, it will be sent to the President for review. H.R. 3012 will only become law if the President signs it. Note that Congress can attempt to override a presidential veto of a bill, but doing so requires a 2/3 vote in each chamber.

Please refer back to the Stern & Curray news blog for updates on the status of H.R.3012. If H.R. 3012 becomes law, it is sure to garner major media attention.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is now issuing employment and travel authorization on a single card for certain individuals who have pending employment or family based I-485 Applications to Adjust Status. An adjustment applicant may receive this combined card when he or she files an Application for Employment Authorization (EAD), Form I-765, and an Application for Travel Document (AP), Form I-131, concurrently with or after filing Form I-485. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other. As of July 2007, there is no longer a fee for either the Form I-765 or Form I-131 filed concurrently with, or in connection to, a pending Form I-485.

This new card replaces the previous practice of issuing a card for employment authorization and separate paper Advance Parole documents. The dual card looks similar to the current Employment Authorization Document (EAD) but includes text that reads, “Serves as I-512 Advance Parole.”

As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Advanced Parole does not cure inadmissibility due to unlawful presence accumulated under INA 212(a)(9)(B) or (C). Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status. It’s therefore imperative that individuals who have accumulated certain periods of unlawful presence in the United States not travel until they have successfully adjusted status to permanent residence.

For more information about the EAD and Advance Parole card, visit www.uscis.gov.

Under the law, USCIS has 90 days to process applications for employment authorization documents (EAD). USCIS policy requires that applications to renew these documents be filed no more than 120 days prior to their expiration. Unfortunately, USCIS is now sometimes pushing up against the 90-day deadline with a result that some applicants are not receiving a new EAD before their prior one expires. Individuals working on an EAD must have a valid EAD in hand in order to be authorized for employment in the United States. Therefore, when adjudication of the EAD is delayed, individuals risk losing their eligibility for employment. Once the EAD application has been pending for 75 days, individuals are allowed to call the USCIS Customer Service number at 1-800-375-5283 to make an inquiry. If the EAD is not adjudicated within 7 days after the individual contacts USCIS Customer Service, the individual’s attorney may pursue the matter through an AILA liaison request.

The U.S. Department of State visa bulletin for August shows that the visa backlog is moving forward. The employment based second preference (EB-2) for China has moved forward four months, while for India it has moved forward five months. The current EB-2 priority date for August for both countries is March 1, 2006. There was similar movement in the EB-3 category as well, with the largest jump being in the “all other countries” which moved forward almost a year to June 1, 2004. Priority dates in many of the family preferences also moved forward by a few months. For the full visa bulletin please visit: http://travel.state.gov/visa/bulletin/bulletin_1360.html