Premium Processing Resumes for Some Green Card Petitions

USCIS is resuming Premium Processing service for Form I-140 workers involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability but not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Other Workers.

Under the Premium Processing Service, USCIS guarantees it will issue either 1) an approval notice, 2) a notice of intent to deny, 3) a request for evidence, or 4) open an investigation for fraud or misrepresentation within 15 calendar days of receipt. There is a filing fee of $1,000, which does not include legal costs associated with the application.

USCIS promises a refund of the $1,000 fee if the petition is not processed within 15 calendar days from the date it receives the premium processing request. However, this does not mean that USCIS must refund the fee if it fails to complete the case within 15 days. If USCIS reviews the petition and issues a notice of intent to deny, a request for evidence, or opens an investigation during the 15 day period, the fee will not be refunded.

Premium Processing may greatly expedite some cases and save six months to one year of waiting time for a green card. If you are potentially interested, please contact Martin Lawler at mlawler@aboutvisas.com to discuss the specifics of your petition.

Martin

Professionals: A Matter of Degree, 5th Edition

My new law book on business visas has been published. It is 530 pages of text plus an Appendix of materials. The book, Professionals: A Matter of Degree, is in its 5th Edition. It covers green cards and all nonimmigrant visas used by professionals including H-1Bs (for professionals), L-1s (for intracompany transferees), P-1s (for athletes), and the latest on the new religious worker visas, among others.

In updating Professionals, I was struck by how many changes have taken place in the law and procedures during the past five years. I also anticipate this rate of change to continue.

The severe backlog of visa numbers means more will wait longer for visas, and the investor visas are more attractive than ever -- E-2 temporary and the EB-5 green card.

Martin

Department of State Advises of Shortage of Visa Number Availability Especially for those Born in India or China

Charles Oppenheim of the Department of State (DOS) Visa Office advises news about the movement of priority dates in the future. He estimates that all 140,000 employment based immigrant visa numbers will be used this fiscal year (10/1/08 through 9/30/09). Other significant points include:

• The employment-based 4th preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 09, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
  
• The employment-based 5th preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
  
• The surge in employment-based 4th and 5th preference numbers is significant beyond those specific categories. Historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based 1st and 2nd preference categories. This has allowed the China and India cut-off dates to advance further than would be possible if those categories were finished at their annual limits. This means EB1 and EB2 immigrants from China and India could have an even longer wait to obtain green cards.
  
• The EB1 category (extraordinary ability, outstanding researchers and multinational managers) worldwide will remain current the rest of the fiscal year but demand is high.
  
• The EB1 categories for India and China will be current during the month of June 09, but could require a cut-off date in Aug. or Sept. should EB1 demand remain heavy. China and India have benefited from the excess EB1 numbers for all other countries. However, because of the high demand from other countries this year, there are fewer numbers to "fall across" to India and China.
  
• EB2 (MS or BS + 5 yrs exp.) India. The prognosis is grim. For June 09, the cut-off date is 1/1/2000, and the category may become unavailable completely in Aug. or Sept. 09. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number. India, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for Indian EB2 applicants can be measured in years, even decades, without legislative relief.
  
• EB2 (all other workers) China. The prognosis is equally grim. As of July 09, the cut-off date will be 1/1/2000 and the category may become unavailable completely in Aug. or Sept. 09. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number to be approved. China, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for India born EB2 applicants may be measured in years, without legislative relief.
  
• EB3 worldwide will be unavailable the remainder of this fiscal year. As the DOL cleared up its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. As of 10/1/09, the DOS currently estimates the EB3 worldwide cut-off date will be 3/1/03. There will be extended delays in this category.
  
• EB3 visas for India, China and Mexico applicants will be unavailable this fiscal year. It is estimated, based on current demand for visa numbers that as of 10/1/09, the following cut-off dates could be established: China will be 3/1/03; India will be 11/1/01; and Mexico will be 3/1/03.
  
• There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the DOS awaiting a visa number.
  
• There are 2.7 million family based applicants on the waiting lists for consular processing. This information was listed in the March Visa Bulletin.
  
• There could be approximately 50,000 employment based applicants on the waiting lists for consular processing.
  
• Currently almost 90% of all employment based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.

The solution to this long backlog is to advocate that Congress add more visa numbers or exempt spouses and children from needing a visa number. For those who can afford it, the EB-5 (investor) category is looking better all the time. See our web page http://www.aboutvisas.com/ for details on all these visa categories and the EB-5.

Martin

Individual EB-5 investments

Individuals may wish to apply for an EB-5 green card based on a $500,000 or $1 million investment in their own business (as opposed to a regional center). They need to have an accountant who works closely with immigration counsel to ensure the investment is reported properly on the business and individual’s tax returns.

Individual EB-5 petitions require considerable documentation of the enterprise’s activities and job creation.

Ankle Bracelet

Often people arrested by the immigration police are released from custody after placement of an electric monitor on the person’s ankle. This is commonly referred to as an ankle bracelet.

The monitor placed on an ankle is uncomfortable, cannot be removed for washing, and is anything but pretty. It is definitely not a “bracelet.”

Assigning deceptively pleasant words to bad things is a marketing ploy often adopted by the government and continued by the press. For example, genocide and mass slaughter which are anything but clean are called “ethnic cleansing,” and wars are called “conflicts” as though they were domestic spats.

I suggest electronic monitors be called “electronic cuffs” or “electronic ankle shackles” or “electronic shackles.”

I am aware wearing an electronic shackle beats going to jail but language matters, at least sometimes.

Regards,

Martin

Good News – H-1B Cap Not Reached

USCIS has announced that the H-1B visa cap of 65,000 visas, and the 20,000 for U.S. advanced (Ph.D., Master’s) degrees, has not been reached. This means that all applications properly submitted through April 7th will be accepted and adjudicated (and there will be no lottery for these applications). Further, there is time remaining in which to submit new applications.

USCIS says almost all the 20,000 advanced degree visa numbers have been used, but only about half of the 65,000 used.

Initially, rumor was that the cap would be reached on April 7th but this has turned out not to be so. Last year 163,000 applications were received in the first five business days of April.

As a reminder, regardless of when decided new H-1B’s will not be valid until October 1, 2009 at the earliest.

As we have more information we will let you know.

Martin

Wanted: A Few Good Immigrants for the U.S. Military in Exchange for U.S. Citizenship

On February 15, 2009, the New York Times reports:

"The Army’s one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Army’s program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days."

Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." http://www.nytimes.com/2009/02/15/us/15immig.html?scp=3&sq=immigrants&st=cse

FYI, the U.S. military has always had authority in wars to enlist nonimmigrants and people who entered illegally.