USCIS Provides Guidance on Immigrant Visa Availability and Priority Dates

From GreenbergTraurig, 11/17/2015

The Basics of Immigrant Visa Availability

The Immigration and Nationality Act (INA) sets a limit on the number of immigrant visas (i.e. green cards) that may be issued to foreign nationals each year, and the U.S. Department of State (DOS) is the agency that allocates the aforementioned immigrant visas.

There are an unlimited number of immigrant visas available each year for “immediate relatives” of U.S. citizens. “Immediate Relatives” include spouses, unmarried children under the age of 21, parents of U.S. citizens at least 21 years old, and surviving spouses of U.S. citizens if the U.S. citizen spouse filed a petition before his or her death, or the surviving spouse files a petition within two years of the U.S. citizen’s death.

There are approximately 226,000 immigrant visas available each year in the family-sponsored preference categories; employment-based preference category immigrant visas are typically limited to 140,000 visas per year. However, these numbers may increase when immigrant visas from the previous fiscal year’s allotment are not used up. DOS further distributes based on preference category, country of chargeability (usually country of birth) and priority date.

Priority Dates

When the demand for immigrant visas exceeds the number of visas available, a waiting list for immigrant visa availability forms and the priority date is used to determine an individual’s place in the visa queue.

The priority date is located on a prospective immigrant’s Form I-797 Notice of Action for the relevant immigrant visa petition filed on their behalf. For most family-sponsored preference categories, the priority date is the date the Form I-130, Petition for Alien Relative is filed with USCIS. For employment-based preference categories that require a labor certification from the Department of Labor (DOL), the priority date is the date that the labor certification application is filed with the DOL, and the petitioner must file an I-140, Immigrant Petition for Alien Worker with USCIS within 180 days from the date the labor certification is approved. For employment-based preference categories that do not require a DOL labor certification, the priority date is the date the immigrant visa application is filed with USCIS for processing.

Only when a prospective immigrant’s priority date is earlier than the cut-off date shown for a given preference category and country of chargeability in the relevant chart of the monthly Visa Bulletin (also known as when the priority date is “current”) is a visa number available. When an individual’s priority date is current, he or she can take one of the final steps in the process of obtaining lawful permanent residence status in the U.S.

Sometimes, the visa cut-off date will move backwards or “retrogress” to an earlier date, and a priority date that is current one month will no longer be current the next month. This occurs when the number of people who apply for a visa in a given category exceeds the number of available immigrant visas that month.

Adjustment of Status Applications

Individuals present in the U.S. can file a Form I-485, Application to Register Permanent Residence of Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition according to the monthly Visa Bulletin published by DOS. The monthly DOS Visa Bulletin indicates the availability of immigrant visas according to “Application Final Action Dates” and “Dates for Filing Applications.” Usually the “Application Final Action Dates” chart will determine when a prospective immigrant is eligible to file an adjustment of status application with USCIS.

When immigrant visas are currently available based on preference category, country of chargeability and priority date, a prospective immigrant can file his or her Form I-485 adjustment of status application concurrently with an underlying family-sponsored or employment-based immigrant petition.

As part of the adjustment of status application, an applicant must submit a Form I-693, Report of Medical Examination and Vaccination Record. However, the Form I-693 has limited validity and thus many applicants choose to wait to provide the Form I-693 until after receiving a Request for Evidence (RFE) or an immigrant visa interview to avoid having to repeat the immigration medical examination.

Along with a Form I-485 adjustment of status application, the applicant can also apply for a combination Employment Authorization Document (EAD)/Advance Parole card, which serves as a prospective immigrant’s work and travel authorization while the adjustment of status application is pending. This EAD/Advance Parole combo card is valid for one year but can be extended until the Form I-485 is processed.  

Finally, a prospective immigrant can request to have a pending I-485 Application for Adjustment of Status transferred from one immigrant visa eligibility basis to another, as long as the applicant is the beneficiary of a pending or approved visa petition in the new preference category. In order to quality, the priority date must be current in the new category and for the prospective immigrant’s country of chargeability on the date the transfer is filed.

Pending Adjustment of Status Applications and AC21

Under Section 204(j) of the American Competitiveness in the Twenty-First Century Act (AC21), a prospective immigrant with employment-based Form I-485 pending for 180 days or more can seek to “port” to a new job in the same or similar occupational classification before final adjudication of the adjustment of status application.

Under AC21 Section 104(c), the beneficiary of an approved I-40 petition can extend his or her H-1B status beyond the six-year H-1B limitation if a he or she is eligible for lawful permanent resident status but a cannot currently file to adjust status due to lack of current availability of a visa number. To determine whether an individual is eligible for this benefit, USCIS relies on the “Application Final Action Dates” chart of the Visa Bulletin: if the priority date is on or after the cut-off date listed in the chart for the individual’s preference category and country of chargeability, then he or she may be eligible for an H-1B extension under AC21 Section 104(c).

What to Expect During the Federal Shutdown: Information for Foreign Nationals

The U.S. Congress was not able to come to consensus on the federal budget by the October 1 deadline. As a result, many U.S. government operations – including some key immigration functions – will be suspended until an agreement is reached.

The duration of the shutdown cannot be predicted. It could last for several days or weeks, though Congress could pass a temporary measure to fund the government while debate over the budget continues.

The following are some frequently asked questions about the impact of the shutdown on foreign nationals. If your immigration case is delayed by the shutdown, keep in close contact with your employing department and your designated Faculty & Researcher Immigration Specialist in Global Human Resources. We will be closely monitoring the government’s immigration operations and will provide updates on this blog. 

1. I need to apply for a nonimmigrant visa. Will the U.S. consulate be able to process my application and issue my visa during the shutdown? 

Yes, but you should file quickly and be prepared for possible delays.

U.S. consulates plan to remain open and process visa applications for as long as the funding the State Department receives from application fees remains available. (Visa operations are partly funded by application fees paid by foreign nationals and partly by U.S. government appropriations. Only the government appropriations funding is affected by the shutdown.)

But it is important to file as soon as possible in the event the shutdown lasts for more than a few days. If funds from application fees are depleted, the State Department could suspend visa processing or limit it to urgent medical or humanitarian cases only. 

2. My nonimmigrant visa application is pending and I have a visa appointment in the very near future. Will the U.S. consulate be able to process my visa? What if my case is undergoing a security clearance?

As noted above, U.S. consulates will be open during the shutdown and will continue to process visas and conduct visa interviews as long as State Department funds remain available. However, if the shutdown lasts for more than a few days and funding is depleted, your case could be delayed.

If your application is subject to a security clearance, you could experience a delay during the shutdown. Many government agencies take part in security clearances in addition to the State Department, and some may be affected in the event of a shutdown. 

3. Will Canadian nationals be able to submit applications for TN or L-1 status at the U.S. border or port of entry? 

U.S. Customs and Border Protection, which adjudicates border applications for TN and L-1 status, has not yet announced whether they will continue to process these applications, but this function may not be affected by the shutdown. If you are a Canadian national planning to apply at the border while the shutdown is ongoing, please contact your designated Faculty & Researcher Immigration Specialist in Global Human Resources to coordinate your application.

4. My department is planning to file a PERM application on my behalf. Will the Labor Department process my application during the shutdown? 

No. All of DOL’s immigration-related functions, including labor certification operations, will be suspended during the shutdown. The online system used to file PERM applications will not be able to accept new cases. PERM applications already on file with DOL will not be processed. Processing will resume only after the shutdown is over. 

5. My department is filing an immigration petition with USCIS on my behalf. Will the USCIS be able to process it during the shutdown?

Yes, USCIS will continue to process applications and petitions for immigration benefits during the shutdown. This includes petitions for immigrant and nonimmigrant workers and applications for adjustment of status. However, processing delays are possible if adjudication of your case is dependent on support from government functions that are suspended during the shutdown – for example, if your case requires a certification from the Department of Labor or a security clearance from an agency that is affected by the shutdown. 

6. I am an H-1B employee and my status is expiring soon. My department is planning to file for an extension for me. Will my extension be affected by the shutdown? 

Possibly. Though USCIS will continue to process extensions during the shutdown, your case could be delayed by the suspension of labor condition application (LCA) processing at the Department of Labor. A valid LCA certified by DOL is an essential part of any extension of H-1B nonimmigrant status, but DOL’s LCA operations will be suspended during the shutdown.

If we do not have a valid, certified LCA in place for your position and work location, your extension could be delayed. 

7. I am a new nonimmigrant employee and I need to apply for a U.S. Social Security number. Will I be able to apply during the shutdown?

No. Though the Social Security Administration will remain open during the shutdown, it will not be accepting or processing applications for Social Security numbers (SSNs) or replacement Social Security cards.

You do not need an SSN to start work, but lack of an SSN could affect your ability to obtain a U.S. driver’s license, open a bank account and obtain other benefits. 

8. Will a nonimmigrant be able to apply for a driver’s license or non-driver ID during the shutdown? What about renewing a license or state ID?

Even though driver’s licenses and non-driver IDs are the responsibility of state governments, your application for a new or renewed license could be delayed during the shutdown. Your state Department of Motor Vehicles must use a federal database to verify your immigration status before it will issue you a license or ID card. This database, known as SAVE, could be suspended.  

9. How quickly will immigration operations return to normal after the shutdown is over?

Once the budget impasse is resolved, you should expect some processing delays while affected agencies get back up to speed. Backlogs are likely to build up during the shutdown and it could take several days or weeks for agencies to work through them.

Source: Fragomen.com

Impact of Government Shutdown on Immigration Agencies

From the Council for Global Immigration, 10/01/2013

After months of negotiation between the administration and the two branches of Congress, no deal has been reached to keep the federal government open.  As such, federal immigration agencies are scrambling to implement a government shutdown.  While the situation is fluid and we have seen conflicting information from various sources, we have verified the following information through conversations and correspondence with government officials in order to ensure you have the most recent information.   Please let us know if your experience with the agencies differs from the information below and we will provide updates as the implementation of the shutdown continues to develop.

Department of Homeland Security

The DHS contingency plan for the shutdown can be found here.

USCIS Adjudications

USCIS is mostly fee funded, and therefore the impact on adjudications will be minimal compared to most immigration processes.  In fact, out of the 12,558 USCIS employees, all but about 300 will be reporting to work during a shutdown.

This means that processing at USCIS will be relatively normal, other than processes affected by other agencies (for instance, no new LCAs will be issued by Department of Labor for H-1Bs).

E- Verify

Unlike the rest of USCIS, E-Verify is not fee funded and will be inaccessible during a shutdown, including employment verification, resolution of Tentative Nonconfirmations (TNCs) and Self Check.   USCIS has provided the following guidance:

• The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.

• The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.

• For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.

• Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses). 

Customs and Border Protection

Most CBP functions will continue, as most CBP staff are considered essential, but adjudication of TN and blanket L applications by Canadian citizens would stop during a government shutdown. 

Immigration and Customs Enforcement

ICE will retain most of its staff because they are considered essential.   We do not expect any major issues with enforcement.

CIS Ombudsman

The CIS Ombudsman’s office will be closed during a government shutdown.

Department of Labor

The Office of Foreign Labor Certification (OFLC) notice regarding the shutdown can be found here. 

OFLC will essentially shut its doors during a shutdown.  This means no processing of labor certifications, LCAs or prevailing wage determinations during a shutdown.  We also now know that employers and attorneys will not even be able to log into the PERM and iCERT websites during a shutdown.  We are pushing for grace periods in situations such as recruitment expiration while the agency is closed.

Department of State

In previous situations where a shutdown was looming, we were told that a shutdown would basically mean cessation of consular affairs, visa processing and passport issuance altogether, except for certain narrow exceptions such as humanitarian exceptions.

With this shutdown, however, the Department of State appears to have a temporary solution but the details are unclear.  The official statement from the Department of State is:

Consular operations domestically and overseas will remain 100% operational as long as there are sufficient fees to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, the facility may become unsupported. The continuance of consular operations in such instances will be treated on a case-by-case basis by the Under Secretary for Management.

We were able to confirm yesterday with the Department of State's Bureau of Consular Affairs that visa issuance will continue at least temporarily.  We do not have confirmation at this time as to the alternative source of funding or how long it will last.

SEVIS is fee funded and we have not heard any indication that it will be affected by a shutdown.  We will keep you up to date if this news changes.

Department of State guidance on the shutdown can be found here.

Department of Justice

Office of the Special Counsel

The hotline for the Office of the Special Counsel will not be available to the public during a shutdown. Some attorneys working on litigation will work limited hours. 

Federal Shutdown Has Immediate Impact at DOL, E-Verify

From Fragomen.com, 10/01/2013

Department of Labor 

DOL's foreign labor certification operations have ceased and will remain suspended until further notice. DOL issued PERM and LCA certifications on Monday evening, but will not process any further cases to completion until after the shutdown concludes. When normal operations resume, employers should expect delays as the agency works through its case backlog. 

The PERM and iCERT systems are now offline and will remain so for the duration of the shutdown, but were briefly operational this morning and appeared to be accepting filings. It is not clear how applications submitted during this brief window of opportunity will be treated after the shutdown is over. Employers and their immigration counsel will need to monitor these cases closely after DOL operations resume, and should be prepared for the possibility that cases submitted today may need to be refiled later on.

Employers who filed PERM applications on Monday received DOL’s standard sponsorship questionnaire emails this morning, but will not be able to complete them until after the shutdown. 

Impact of DOL Shutdown on H-1B Filings 

Though USCIS will continue to process petitions during the shutdown, employers may not be able to file H-1B petitions because of the suspension of labor condition application (LCA) processing at the Department of Labor. A valid, certified LCA is a requirement for every H-1B petition. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, but it has not yet announced whether it will do so during the present shutdown. Suspension of LCA operations will also affect the processing of E-3 and H-1B1 filings at USCIS Service Centers and U.S. consulates. E-3 and H-1B1 filings also require a valid, certified LCA.

U.S. Consulates 

Currently, visa services at U.S. consulates appear to be operating normally, but foreign nationals should submit visa applications and make visa appointments as soon as possible in case consular operations are affected by the shutdown later on. The State Department will use funding from application fees to support consular functions for the time being, but it is not clear how long these funds will remain available. Employers and visa applicants should be prepared for the possibility of future delays in the event that the shutdown persists for more than a few days and State Department needs to suspend or limit visa services. 

E-Verify Operations 

The E-Verify system is down for the duration of the federal shutdown. Employers will not be able to initiate E-Verify queries or resolve tentative nonconfirmations, and will not be expected to meet the usual E-Verify deadlines. However, employers must not take any adverse action against an employee whose employment eligibility verification cannot be confirmed in E-Verify due to the shutdown. 

All employers remain subject to the same I-9 obligations. E-Verify outage would not affect the deadlines that are applicable to Form I-9 completion. 

Other Government Benefits

The Social Security Administration has confirmed that it is not accepting or processing applications for Social Security numbers or replacement cards during the shutdown. Foreign nationals who are unable to obtain an SSN may not be able to apply for a U.S. driver's license, open a bank account or obtain other benefits. 

The SAVE system is operating during the shutdown. SAVE is the federal database used by government agencies -- including State Departments of Motor Vehicles -- to verify the immigration status of foreign nationals applying for benefits. Though foreign nationals could experience delays in driver's license applications and renewals for other reasons related to the shutdown, SAVE verifications should not be affected. 

DOL Labor Certification Registry Goes Live

From Fragomen.com, 07/01/2013

The Department of Labor today launched the Labor Certification Registry, an online database that makes certified PERMs, labor condition applications (LCAs) and other labor certifications easily accessible to the public. 

The database, which was announced earlier this year, will make LCA, PERM and H-2A/H-2B labor certification records publicly available within two business days of certification, though the posting of H-1B LCAs has been delayed until July 15, 2013. The registry also contains all LCAs and PERMs certified since April 15, 2009. 

The registry's PERM records give users nearly complete access to information about jobs for which labor certification is sought, including job titles and descriptions, requirements, wages and recruitment, as well as employer contact, signatory and attorney information. Only the employer’s FEIN and the foreign national’s name and other personally identifiable information are redacted. LCA are fully viewable, with only employer FEINs redacted. 

DOL has made PERM and LCA case data available in the past, but the new registry contains far more information than had been disclosed previously.

Labor Department Set to Unveil Public Database of PERMs and LCAs on July 1

From Fragomen.com, 06/24/2013

On July 1, the U.S. Department of Labor will launch a searchable online registry of PERM and labor condition applications (LCAs) that will make employer sponsorship information more quickly and easily accessible to the public. The database, which was announced earlier this year, will contain information on PERMs and LCAs certified since April 15, 2009. 

The new registry will appear on the agency’s iCERT portal. Data on new PERMs and LCAs are expected to be available for public viewing within two business days of certification. The information will reportedly be available in a variety of formats, including PDF copies of certified cases and a searchable database. DOL plans to redact certain information from public disclosure, including the names of foreign workers and employer FEIN numbers, but the full extent of the redaction will not be known until the database goes live. 

Currently, DOL discloses some PERM and LCA case data in quarterly reports to the public, though disclosure is limited to basic details of the employer and offered position.

Sequestration Update: What Immigration Agencies Will Have Furloughs?

From ACIP, 04/10/2013

Department of State: The Department of State is not furloughing employees at this time, but has retained the option to furlough employees beginning June 30.

 

Customs and Border Protection:  On March 7, furlough notices were sent to all CBP employees.  This decision faced considerable opposition from Congress.  On April 1, CBP postponed furloughs until further notice.

 

Department of Labor: DOL has issued furlough notices to 4,700 employees.  Employees must take their furlough days between April 15 and September 21.  We are doing outreach with the Office of Foreign Labor Certification to determine the impact furloughs will have on the processing of prevailing wage determinations, PERM and LCAs.

 

Department of Homeland Security: DHS law enforcement personnel will be furloughed for up to 14 days.

 

USCIS: At this time, USCIS has not announced any furloughs.  While USCIS is a fee based agency, we have been informed that the fee account is subject to the sequester and furloughs are possible.

Sequestration Update: How will the immigration agencies be affected?

Details are still coming in about the full impact of the sequester on the immigration agencies.  The agencies are working on implementation plans for mandatory budget cuts and we can assume that normal processes are likely to slow down.  Here’s some more detail about what’s going on at the various agencies.

United States Citizenship and Immigration Services

Since USCIS gets most of its budget from fees, the impact of sequestration might not be felt as immediately as it is at many of the other agencies.  However, there has been speculation about a “spillover effect,” meaning that, as many USCIS processes are dependent upon documents and processes from other agencies like CBP and ICE, the agency will be affected indirectly from the sequester.  

Customs and Border Protection & Transportation Security Administration

DHS Secretary Janet Napolitano say that the sequester is already having a major effect on travel time at airports, with lines increasing to 150% or 200% of their normal size.  This is due to cutbacks on overtime at CBP, and could be exacerbated as furloughs or changes to overtime kick in for TSA. 

Immigration and Customs Enforcement

ICE has received considerable attention in light of the sequester, after 2,000 undocumented immigrants were released from detention.  In recent days, however, Napolitano has said that the release was part of the “normal ebb and flow” of detention, not an immediate result of the sequester.  Still, as Napolitano says the agency does not have the budget to meet the detention expectations of Congress, it appears the sequester will have a significant impact on the agency.

Department of State

Secretary of State John Kerry has said that “[r]eductions in funding would jeopardize the Department’s efforts to provide secure, error-free travel documents to those eligible to receive them, while denying them to those not eligible. Reduced funding would also undermine progress made in ensuring that visa requests are processed in a timely fashion.”

Patrick Ventrell, the agency’s acting deputy spokesperson, expanded upon Kerry’s remarks, saying “[O]ne of the things we are very concerned about is we’ve done – we’ve had a huge influx of hiring of new consulate officers we sent out to hotspots like India, China, Brazil, where you have lots of middle class folks who are trying to come to the U.S. for the first time and visit and spend their money. It’s good for the American economy. And so we are concerned that . . . we could have major setbacks in really the herculean effort we’ve made to reduce wait times.”  He noted the huge impact this could have on the economy, stating “We estimate that for every 65 visitors to the U.S., that creates one American job.”

Department of Labor

It is unknown exactly what budgetary cuts will be made at DOL, but the possibility exists that both PERM and LCA processing will slow down. 

Source: American Council on International Personnel, 03/07/2013

Impact of the Federal Budget Sequester on Immigration Processing

Fragomen.com, 03/01/2013

As has been widely reported in the media, across-the-board funding cuts are set to take effect today at U.S. government agencies unless Congress can reach a compromise on the federal budget. The Departments of Homeland Security, State and Labor are all subject to cuts, but have not yet specified how their immigration processing operations would be affected. If funding reductions take place, employers and foreign nationals could see delays in adjudications, border inspections and visa issuance. 

U.S. Citizenship and Immigration Services is primarily funded by filing fees and may see the fewest effects if sequester takes place, though it is subject to budget cuts to some degree. Customs and Border Protection is expected to be among the hardest hit among DHS operations. Immigration and Customs Enforcement this week released some low-risk foreign nationals from detention facilities, citing looming budget cuts. 

At the State Department, officials have already warned that consular services like visa processing might be delayed. Labor Department functions – including PERM, labor condition application (LCA) and prevailing wage operations – are not funded by fees and could also face delays due to cuts.