Immigration Information Discussion Forum

Immigration Information Discussion Forum - Blogs http://www.immigration-information.com/forums/blog.php An immigration discussion forum en Tue, 14 Oct 2008 04:27:59 GMT vBulletin 60 http://immigration-information.com/forums/imagize/misc/rss.jpg Immigration Information Discussion Forum - Blogs http://www.immigration-information.com/forums/blog.php CIS processing statistics http://www.immigration-information.com/forums/blog.php?b=17 Thu, 21 Aug 2008 22:58:32 GMT The CIS is required by law to disclose certain productivity statistics. Notwithstanding this obligation, they do their best to hide the statistics and keep them as confusing as possible. Presently, the CIS monthly processing statistics can be found by going to... The CIS is required by law to disclose certain productivity statistics. Notwithstanding this obligation, they do their best to hide the statistics and keep them as confusing as possible. Presently, the CIS monthly processing statistics can be found by going to http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD There is no assurance, however, that this URL will remain valid for more than another month or two, when they will move the information to another location.

According to the CIS, at the end of the month of April, 2007 they had a total of 2,731,088 cases of all types pending in their system. This includes I-129s, I-130s, I-140, I-485s and all other types of petitions and applications. More specifically, they had a total of 580,507 adjustment of status applications pending in their system and 92,355 I-140 petitions pending. In April, 2007 they took in 431,114 new cases.

We do not know if these number represented the actual count of physical files in their system, or the numbers of cases “beyond normal cycle times” that they use to determine their backlogs. Most likely, it is the latter, since the CIS has been pretty consistent about not disclosing the full extent of their backlogs. Also, the last several CIS Ombudsman Annual Reports to Congress have mentioned that the CIS uses this smaller number to represent backlog figures. If so, then the actual numbers are substantially larger.

Also, these adjustment of status number include family based applications and are not limited to employment based cases only.

Thus, for April, 2007 the gross numbers reported by the CIS were:

Receipts 431,114
AOS 580,507
I-140 92,355
All pending 2,731,098

In June, at the start of last year’s filing surge, those numbers grew to:

Receipts 514,092
AOS 597,844
I-140 103,563
All pending 2,897,357

By September, following the filings surge, the same categories were reported as:

Receipts 671,648
AOS 654,864
I-140 [no data]
All pending 3,278,907

In January, 2008 the CIS reported the numbers for these categories as follows:

Receipts 358,447
AOS 813,238
I-140 [no data]
All pending 3,114,368

We can see that while receipts were down significantly, the total number of adjustment of status applications had increased sharply. By April, 2008 we see the following:

Receipts 411,969
AOS 742,597
I-140 140,635
All pending 3,127,040

Receipts were up and the total pending number of AOS applications had decreased by about 70,000. It is hard to know how many of these were family based applications, filed in July prior to the fee increase, that would normally have been interviewed and adjudicated in the ten month interval shown, and how many were employment based. Given that there are about three family based AOS applications filed for each employment based AOS application, a backlog reduction of 70,000 between January and April is not at all impressive.

Finally, the last month for which statistics have been released is June, 2008. The numbers for that month are:

Receipts 395,823
AOS 740,969
I-140 130,790
All pending 3,203,821

New filings were down from the April level, yet the pending number of AOS cases was not quite 2,500 fewer than the April figure. Of greater significance is the reduction in the I-140 backlog, which is likely more indicative of the actual employment based AOS reduction. The CIS statistics show a reduction of nearly 10,000 I-140s in the backlog between April and June, 2008.

The CIS goes to great lengths to conceal their actual backlogs. They define their numbers carefully and they never disclose their actual, raw numbers. At best, we can look at what they have posted and draw limited inferences from what they have chosen to reveal. The fact that they insist on keeping their raw data secret, however, reveals a great deal about the actual state of their backlogs. Were they making significant progress in reducing their backlog, one would think that they would make this known to the world. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=17 CIS processing statistics http://www.immigration-information.com/forums/blog.php?b=16 Thu, 21 Aug 2008 22:58:30 GMT The CIS is required by law to disclose certain productivity statistics. Notwithstanding this obligation, they do their best to hide the statistics and keep them as confusing as possible. Presently, the CIS monthly processing statistics can be found by going to... The CIS is required by law to disclose certain productivity statistics. Notwithstanding this obligation, they do their best to hide the statistics and keep them as confusing as possible. Presently, the CIS monthly processing statistics can be found by going to http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD There is no assurance, however, that this URL will remain valid for more than another month or two, when they will move the information to another location.

According to the CIS, at the end of the month of April, 2007 they had a total of 2,731,088 cases of all types pending in their system. This includes I-129s, I-130s, I-140, I-485s and all other types of petitions and applications. More specifically, they had a total of 580,507 adjustment of status applications pending in their system and 92,355 I-140 petitions pending. In April, 2007 they took in 431,114 new cases.

We do not know if these number represented the actual count of physical files in their system, or the numbers of cases “beyond normal cycle times” that they use to determine their backlogs. Most likely, it is the latter, since the CIS has been pretty consistent about not disclosing the full extent of their backlogs. Also, the last several CIS Ombudsman Annual Reports to Congress have mentioned that the CIS uses this smaller number to represent backlog figures. If so, then the actual numbers are substantially larger.

Also, these adjustment of status number include family based applications and are not limited to employment based cases only.

Thus, for April, 2007 the gross numbers reported by the CIS were:

Receipts 431,114
AOS 580,507
I-140 92,355
All pending 2,731,098

In June, at the start of last year’s filing surge, those numbers grew to:
Receipts 514,092
AOS 597,844
I-140 103,563
All pending 2,897,357

By September, following the filings surge, the same categories were reported as:
Receipts 671,648
AOS 654,864
I-140 [no data]
All pending 3,278,907

In January, 2008 the CIS reported the numbers for these categories as follows:
Receipts 358,447
AOS 813,238
I-140 [no data]
All pending 3,114,368

We can see that while receipts were down significantly, the total number of adjustment of status applications had increased sharply. By April, 2008 we see the following:
Receipts 411,969
AOS 742,597
I-140 140,635
All pending 3,127,040

Receipts were up and the total pending number of AOS applications had decreased by about 70,000. It is hard to know how many of these were family based applications, filed in July prior to the fee increase, that would normally have been interviewed and adjudicated in the ten month interval shown, and how many were employment based. Given that there are about three family based AOS applications filed for each employment based AOS application, a backlog reduction of 70,000 between January and April is not at all impressive.
Finally, the last month for which statistics have been released is June, 2008. The numbers for that month are:
Receipts 395,823
AOS 740,969
I-140 130,790
All pending 3,203,821

New filings were down from the April level, yet the pending number of AOS cases was not quite 2,500 fewer than the April figure. Of greater significance is the reduction in the I-140 backlog, which is likely more indicative of the actual employment based AOS reduction. The CIS statistics show a reduction of nearly 10,000 I-140s in the backlog between April and June, 2008.
The CIS goes to great lengths to conceal their actual backlogs. They define their numbers carefully and they never disclose their actual, raw numbers. At best, we can look at what they have posted and draw limited inferences from what they have chosen to reveal. The fact that they insist on keeping their raw data secret, however, reveals a great deal about the actual state of their backlogs. Were they making significant progress in reducing their backlog, one would think that they would make this known to the world. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=16 Attempted revocation of an I-140 after an AOS has been pending for 180 days or more http://www.immigration-information.com/forums/blog.php?b=15 Wed, 23 Jul 2008 15:00:11 GMT Though the issue was been settled by the CIS in favor of employees almost three years ago, many people still believe that an employer may revoke an I-140 for an employee who has ported to a new job after his or her I-485 has been pending for more than 180 days. In a CIS memo dated December 27, 2005... Though the issue was been settled by the CIS in favor of employees almost three years ago, many people still believe that an employer may revoke an I-140 for an employee who has ported to a new job after his or her I-485 has been pending for more than 180 days. In a CIS memo dated December 27, 2005 and titled ”Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)” the CIS instructed its adjudicators as follows:

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.

It is very clear that once an application for adjustment of status has been pending for more than 180 days, an employer loses the right to revoke the underlying I-140 petition. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=15 The Neufield May 30, 2008 AC21 Memo http://www.immigration-information.com/forums/blog.php?b=14 Thu, 17 Jul 2008 23:03:49 GMT On May 30, 2008 Donald Neufield , the CIS Acting Associate Director for Domestic Operations published a memo titled “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the... On May 30, 2008 Donald Neufield , the CIS Acting Associate Director for Domestic Operations published a memo titled “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277.”

This memo has been the subject of considerable discussion in various forums on the Internet. Unfortunately, most people have not read it carefully and have come to believe that it stands for something other than what it explicitly states.

After reciting a list of seven previously issued memoranda and one “adopted decision,” Mr. Neufield explicitly stated that:

“All of the provisions of these memoranda remain in effect except where noted herein. This memorandum supplements the existing guidance.”

In other words, unless specifically contradicted and changed by the text of this latest memorandum, all previous statements remained in full force and effect.

The May 30, 2008 memorandum raised x new issues required in light of recent developments:

1. AC21 §106(a) Guidance Relating to Recent DOL Final Rule-Making

The DOL promulgated new rules last year concerning individual labor certification. These rules contained a number of new requirements, including one that mandates the filing of an I-140 within six months of the approval of the labor certification. If the I-140 is not filed, the labor certification becomes void and is automatically revoked. The DOL rules also provide for the revocation, on notice and after an opportunity to be heard, of improperly issued labor certification approvals.

Because these rules potentially impact the eligibility of H-1B nonimmigrants to extend their stays beyond six years, the CIS felt it necessary to issue guidance on this subject.

2. AC21 §104(c) Guidance for Aliens Subject to Per Country Visa Limitations

The memo clarifies that the provisions of Section 106(c) are only applicable where the petitioner shows that the beneficiary does not have a current immigrant priority date, due to the single state limitation, as of the date the H-1B petition and status extension is filed. Again, this is nothing new.

3. INA § 214(g)(6) Guidance relating to Concurrent Employment Requests for certain H-1B Cap-Exempt Aliens.

Mr. Neufield clarified that H-1B employees of cap-exempt employers may accept concurrent employment with non cap-exempt employers.

4. INA § 212(n)(2)(C)(v) Guidance Relating to Changes in Employment by H-1B Aliens who report LCA violations.

This portion of the memo simply reiterates existing policy that H-1B beneficiaries who report LCA violations shall not suffer penalties if periods of unemployment result from their actions.

Finally, the misunderstood and therefore controversial section of the Neufield memo provides:

5. AC21 §106(c), INA § 204(j) Portability Guidance relating to USCIS Adopted Decision, Matter of Al Wazzan.

Preliminarily, the Mr. Neufield reminds adjudicators that:

“Pursuant to AC21 § 106(c), the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs or employers, if:

A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained un-adjudicated for 180 days or more; and
The new job is in the same or similar occupational classification as the job for which the petition was filed. “

This is nothing new. Rather, it is a restatement of the statutory provisions and the commentary offered in all previous memoranda on this subject. The new issue raised by the Neufield memo is the holding in the administrative decision Matter of Al Wazzan.

That decision held simply that:

“An unadjudicated Form I-140 petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days. A denied From I-140 petition is also not considered valid regardless of whether the I-140 petition is denied 180 days or more after the filing of the adjustment of status application and regardless of when a request to invoke the portability provision of INA § 204(j) is made.”

The memo then goes on to explain that:
“In order to be considered valid, an I-140 petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a portability request made under INA § 204(j).”

Unfortunately, many have misunderstood this language to mean that an I-140 must be approved before an adjustment applicant is eligible to change jobs after his or her application has remained unadjudicated for 180 days or more after filing. This is not what the memo says nor is this a valid statement of CIS policy. Indeed, this is not a change at all. It has always been the case that an I-140 must be approved before an application for adjustment of status may be approved.

The holding in Matter of Al Wazzan simply makes it clear that the passage of 180 days since the filing of an application for adjustment of status does not divest the CIS of authority to deny an I-140 petition on the merits. If an I-140 cannot be approved because of the petitioning employer cannot pay the offered wage, or the employee did not qualify for the job at the time the labor certification was filed, or any other valid reason, then the CIS may still deny the I-140 notwithstanding the passage of 180 days. This is nothing new nor does is represent any kind of departure from previous CIS policy.

The explicit statement of policy in the memo was:

“On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision established that a petition that is deniable (i.e., not approvable), whether or not the petition is denied 180 days or more after the filing of the adjustment of status application, cannot serve as the basis for approval of adjustment of status to permanent residence under the portability provision of INA § 204(j). An un-adjudicated Form I-140 petition is not made valid merely through the act of filing the petition with USCIS or through the passage of 180 days. Rather, the petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a §106(c) AC21 portability request.”

In conclusion, section 5 of the Neufield memo does not require that an I-140 be approved first before an applicant for adjustment of status becomes eligible to move to another job after his or her I-485 has been pending for at least 180 days. In other words, nothing has changed. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=14 Visa Bulletin answers and other issues http://www.immigration-information.com/forums/blog.php?b=13 Fri, 20 Jun 2008 19:07:18 GMT Last week, I wrote to Charles Oppenheim of the State Department, asking several specific questions. This morning, I had a long talk with him, when he very graciously called to respond to the questions I e-mailed him earlier. In the course of our discussion, I learned a great deal about the present... Last week, I wrote to Charles Oppenheim of the State Department, asking several specific questions. This morning, I had a long talk with him, when he very graciously called to respond to the questions I e-mailed him earlier. In the course of our discussion, I learned a great deal about the present backlog situation and what is being done about it. First, let me deal with the questions I had asked.

Mr. Oppenheim explained that while the Visa Office initially took the view that visa numbers had to fall down into employment third preference before the could fall across to the individual country quotas, but after further review, additional legislation, and consultation with Congress, they concluded that they have to allocate the fall across within individual preference petitions first.

With respect to the issuance of more than 81 % of the total quota in the first three quarters of the fiscal year, he explained that this resulted from information provided by the CIS. At the end of the day, the result of the early allocation of visa numbers did not any real harm. Those visas would have been allocated by the end of September anyway. What he told me, however, was most interesting.

He said that the CIS asked for substantially larger allocations each month due to anticipated higher denial rates. The historic AOS denial rate is approximately 22%. Based on their review of pending cases, the CIS said that they believed that their denial rate would be approximately 50%. For this reason, they requested larger allocations of blocks of visa numbers so that they could pull larger numbers of files. As it turned out, the denial rate was lower than anticipated so a larger number of visas got used. Mr. Oppenheim observed that the CIS seemed to be adjudicating more recently filed cases. It is unknown as to whether the sample batch of files from which the CIS determined that there would be a likely 50% denial rate was a small sample, a group of older cases, or something else.

The “other worker” visa availability issue is a non-issue. There are only a handful of EB3 visas left in the quota. Because this number is so small, they have made the category “unavailable” for July. Within the “other worker” sub-category, there is a small group of applicants (fewer than 200) with priority dates earlier than the one shown in the Visa Bulletin. The cutoff date was established to help manage this small group.

Mr. Oppenheim did confirm my understanding that the NVC and overseas posts only issue appointment dates when they have a reserved visa number in hand for the applicant.

Based on what I learned in this conversation, it appears that there are at best a few hundred EB3 visa numbers left for this fiscal year. It is highly unlikely that a cutoff date will be shown for EB3 before October, though it is still possible.

I learned a few other facts that are most interesting. Indian applicants make up approximately 40 to 45 per cent of the entire employment based quota backlog (those who have filed and those waiting to file). Chinese applicants are about half that number. Mexico has a large and growing percentage of the EB3 backlog.

The CIS backlog does not appear to be as serious as I had been told previously. Rather than 600,000 pending employment based AOS cases, it is likely less than 400,000 pending cases. Also, according to Mr. Oppenheim, the CIS has “made remarkable strides to improve their processing” of AOS cases. Hopefully, this will translate into sustained higher productivity. He also said that the CIS is moving closer to accepting the idea that they need to begin processing their AOS cases the way the NVC handles consular cases. That is, process them in increments rather than waiting until the last minute and trying to do everything at once. My own feeling is that if the CIS does make this change, it will make life easier for everyone and provide far greater predictability for case completion dates. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=13 Questions about the July Visa Bulletin http://www.immigration-information.com/forums/blog.php?b=12 Wed, 11 Jun 2008 16:57:21 GMT Following the release of the July Visa Bulletin, I wrote to the Visa Office to ask four specific questions. If and when I receive answers to my questions, I will post them here. The questions asked were: ---Quote--- *First*, at the March, 2007 AILA/DOS liaison meeting, in question 22(c) you... Following the release of the July Visa Bulletin, I wrote to the Visa Office to ask four specific questions. If and when I receive answers to my questions, I will post them here. The questions asked were:

Quote:

First, at the March, 2007 AILA/DOS liaison meeting, in question 22(c) you were asked the following question and provided the response below:

“c. How are Paragraph 5 of Section 202(a) and the related paragraph in AC21interpreted for recapturing purposes? For example, when there are leftover immigrant visas from EB-1 – do these automatically “spillover” to all EB-2 countries, including India and China, or can India and China only recapture leftovers numbers from the leftover numbers for India and China?

At this time AC21 is interpreted to mean that numbers can only be made available without regard to the per-country numerical limitations if there are otherwise unused numbers on a worldwide basis. Therefore, as long as a Worldwide Employment Third preference cut-off date is imposed to limit number use, there are no “unused” numbers.”

It appears that this interpretation has changed and is no longer the case. Worldwide EB3 is “unavailable” but there are cutoff dates for India and China EB2 categories. May I ask what prompted this change in interpretation of the law?

Second, the statutory language used in Section 201(a)(2) appears to be explicit:

“employment-based immigrants described in section 203(b) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(b)), in a number not to exceed in any fiscal year the number specified in subsection (d) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year;” [Emphasis added]

The July Visa Bulletin reflects the first allocation of visas for the fourth fiscal quarter of this fiscal year. If the law prohibits the issuance of more than 27 percent of the overall quota in any of the first three quarters, how is it possible that there are no visas available in the employment based third preference category for the fourth and final quarter of the year?

Third, my reading of the plain language of Section 203(b)(3)(B) is that this acts as a limit on the number of visas “other workers” may receive, not a set aside. That being the case, how is it possible that the July Visa Bulletin shows employment based third preference as “unavailable” while at the same time showing availability of visas for EB3 “other workers”?

Fourth, is my understanding correct that an EB3 consular immigrant visa applicant previously scheduled for an interview in July has a visa number reserved and will be able to proceed with his or her interview, notwithstanding the retrogression of the EB3 category to “unavailable”?

]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=12 Immigration Litigation http://www.immigration-information.com/forums/blog.php?b=11 Thu, 29 May 2008 20:42:16 GMT What can you do when the CIS fails to do anything about your pending application or petition and you see cases getting approved that were filed long after your case was filed? The short answer is sue them. The CIS can be held accountable for their failure to act. If you can show that your... What can you do when the CIS fails to do anything about your pending application or petition and you see cases getting approved that were filed long after your case was filed? The short answer is sue them. The CIS can be held accountable for their failure to act. If you can show that your application or petition has been pending for an unreasonably long period of time, you can ask a federal judge to order the CIS to act on it.

The CIS publishes processing time reports for each of its service centers. These reports are grossly inaccurate. Still, they provide a benchmark for determining what the CIS considers to be “normal” processing times. When an applicant has a current priority date and his or her case has been pending substantially longer than the processing dates shown in the CIS monthly reports, the applicant has a prima facie claim for suffering discriminatory treatment.

Applicants should make every effort to obtain information from the CIS. Uniformly, such applicants will be told something along the lines of “Your case is pending and will be adjudicated soon.” The CIS rarely, if ever, provides detailed information as to where a case stands in the queue or the reason for the case being delayed beyond the stated CIS processing times.

Inquiries should take the form of complaints to congressional representatives, calls to the CIS public inquiry line, and letters to the service center handling the case. The applicant should document every effort to determine the status of his or her case, as well as the CIS response (or non-response).

When the filing date reaches a point where it is at least sixty days earlier than the date shown on the CIS processing time reports for similar cases, and the CIS has not offered a reasonable explanation for their delay, it is time to sue them.

Many people ask about filing pro se (self represented) suits. I strongly discourage this for a number of reasons. The federal litigation process is complex. Pro se litigants will not be given special treatment just because they are not lawyers. They will be expected to know the rules just like everyone else.

The U.S. Attorney’s office tries to take advantage of pro se applicants whenever possible. The government loses most immigration litigation matters. The U.S. Attorney’s office needs to register as many wins as possible in this subject matter category. Otherwise, judges will come to regard all immigration litigation matters as cases where they should automatically rule in favor of the plaintiff. Since the government loses substantially all of the cases handled by attorneys, their only hope is to run up the score on pro se litigants. Speaking practically as an attorney who litigates these types of cases, I hate to see pro se represented cases because they often result in adverse decisions that should not otherwise be rendered.

Recently, Congress passed legislation that reinstated the catalyst rule for purposes of determining a prevailing party under the Equal Access to Justice Act (EAJA). This legislation provides that a prevailing plaintiff in litigation against the government may be entitled to legal fees and costs. In order to qualify, the plaintiff must show that the government’s position was not substantially justified and that the plaintiff qualifies as a prevailing party.
Under the catalyst theory, if the litigation acts as the catalyst for government action, then the plaintiff is the prevailing party. This is important since in many cases, the government won’t act until there is litigation.

If it becomes necessary to sue the government to compel action, the plaintiff needs to be able to show that he or she has suffered harm as a result of the delay and that the delay is unreasonable. Harm in immigration cases is pretty much presumed to result from delays. Processing more recently filed cases ahead of older filed cases, without substantial justification, is per se unreasonable.

When you file an action against the government, they are given sixty days in which to respond. If they respond, as opposed to making the issue moot by adjudicating the case, their response will take either of two forms. They will either file a motion to dismiss your action because you have failed to state a claim upon which relief can be granted and/or that the court lacks jurisdiction to hear your case; or, they will file a motion for summary judgment, alleging that you are not entitled to the relief you seek.

If they file a motion to dismiss, you may file a cross motion for summary judgment. The motions will be heard generally within four to six weeks from the date the government’s response is due. That hearing should dispose of the case, one way or the other.

If you prevail, the court will order the CIS to act – usually within thirty to sixty days. In that event, you may file a motion for recovery of attorney’s fees and costs (filing fees, cost of service of process, etc.). If the court grants your EAJA motion, they will award attorney’s fees at a rate significantly below market rates, usually around $240 an hour. Still, it is better than no compensation at all. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=11 H-1B vs. EAD/AP – some thoughts http://www.immigration-information.com/forums/blog.php?b=10 Thu, 29 May 2008 17:18:49 GMT People ask me every day whether they should use their EAD cards or H-1B classification for work authorization. In most instances, I recommend that they use EAD cards. I’d like to take a moment to discuss the reasons why I make this recommendation. There is no clear “law” on the subject. That is,... People ask me every day whether they should use their EAD cards or H-1B classification for work authorization. In most instances, I recommend that they use EAD cards. I’d like to take a moment to discuss the reasons why I make this recommendation.

There is no clear “law” on the subject. That is, nothing in the law requires an applicant for adjustment of status to use one or the other. The “best” solution is always the one that best satisfies the applicant’s unique needs. With this in mind, let’s examine the pros and cons of each.

Maintenance of H-1B status is not without cost. The CIS filing fees are $320, plus $500 for the anti-fraud fee it is a first filing (such as an employer transfer), and $750 to $1,500 for the ACWIA fee. This does not include attorney’s fees. There are two other “costs” that must be counted as well. If you travel, you must have a valid H-1B visa to re-enter. This means that you may have expend time and money renewing your H visa. Also, with an H visa, you may not accept work from anyone other than your petitioning employer. Otherwise, you are in violation of your H status.

Historically, I’ve heard three main arguments I’ve in favor of using H-1B. First, there is the “just in case” argument. To me, this falls into the “monsters under the bed” or fear of the dark kind of superstitious dread argument. “I don’t know what might happen, but I want to keep my H-1B just in case.” I’ve always felt that if you can’t articulate the reason for doing something, it isn’t a very good reason.

The second reason is a concern that if the applicant’s I-485 is denied, the applicant can revert to H-1B status. I believe this to be a specious argument also. Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status.

The third reason, and in my opinion the only valid reason, arises in unusual situations where the principal applicant has applied for adjustment of status but his or her spouse hasn’t. In such cases, it is essential that the principal applicant maintain H-1B status so that the spouse remains eligible for H-4 status.

There is one other important consideration with respect to maintaining H-1B status while applying for adjustment of status (AOS). Three times in the last month I’ve become aware of individuals who elected to stay in H status while applying for AOS and traveled abroad using their H visas. Two of them were laid off unexpectedly while abroad, the other saw his H petitioner go out of business suddenly. All three were left high and dry overseas with no way to return to the US. If they tried to use their H visas, they would be guilty of visa fraud at entry and thus ineligible for adjustment of status.

Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later.

Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents. The EAD/AP combination provides an applicant with a simple, inexpensive alternative to trying to maintain H status while applying for AOS. More importantly, EADs give an applicant job flexibility. With an EAD, an AOS applicant who wishes to exercise his or her right to job portability need only show an EAD card in order to accept new employment immediately. Similarly, an applicant who travels and uses AP as a re-entry document need never bother with having to make an appointment and apply for a new visa while abroad.

If someone wishes to maintain their H-1B status while they are applying for AOS, that is their right. They should do so, however, only if they understand these facts and still wish to maintain H status. They should not do so out of fear of the unknown or a misunderstanding of the facts. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=10 Its time to pull the teeth of the CHC http://www.immigration-information.com/forums/blog.php?b=9 Wed, 14 May 2008 16:56:33 GMT The Congressional Hispanic Caucus has decided that there will be no immigration legislation considered by Congress unless it includes an amnesty for illegal aliens. "It is unacceptable that we should consider piecemeal solutions to a problem as complex as immigration reform," said Congressman Luis V. Gutierrez, Chair of the CHC Immigration Task Force.

“For months, the Democratic majority and the Congressional Hispanic Caucus have prevented the House of Representatives from voting on critical immigration legislation, including a border security bill and an emergency increase in H-1B visas for American high-tech companies,” Rep. Lamar Smith of Texas said in a statement. “They have held this legislation hostage to their demand for a massive amnesty for 12 million illegal immigrants, a demand that the Senate has already rejected.”

Many in the Democratic party have tried to persuade the CHC to modify its position and allow limited emergency relief to be considered. Rep. Raul Grijalva of Arizona called the Democratic caucus "spineless." "Today my party wants to do what is easy, not exactly what is right," said Rep. Luis Gutierrez of Illinois. "The leaders in our party who are arguing for consideration of helping just a few immigrants are risking the future of all immigrants."

Rep. Zoe Lofgren, D-Calif., who chairs the House Judiciary immigration subcommittee, said in an interview that it would be difficult to pass a comprehensive bill this year given the Senate's failure. "I guess the real question is if you can't do everything you want is that an excuse for doing nothing," said Lofgren.
The 24 member CHC has brought the Congress to a standstill on this issue. Who are these people who have such power over the lives of the millions affected by their stand? They are:

Joe Baca (CA43)
Raul M. Grijalva (AZ07)
Charles A. Gonzalez (TX20)
Grace F. Napolitano (CA38)
Xavier Becerra (CA31)
Dennis Cardoza (CA18)
Jim Costa (CA20)
Henry Cuellar (TX28)
Charles A. Gonzalez (TX20)
Raul M. Grijalva (AZ07)
Luis V. Gutierrez (IL04)
Rubén Hinojosa (TX15)
Robert Menendez (NJ)
Grace F. Napolitano (CA38)
Solomon Ortiz (TX27)
Ed Pastor (AZ04)
Silvestre Reyes (TX16)
Ciro Rodriguez (TX23)
Lucille Roybal-Allard (CA34)
John Salazar (CO03)
José Serrano (NY16)
Albio Sires (NJ13)
Hilda Solis (CA32)
Nydia Velázquez (NY12)

If you care about this issue, write to your Congressional representative now. Tell him or her that you insist that they stop caving in to the demands of the CHC and allow votes to take place on immigration relief. You can find your Congressional representative by going to http://capwiz.com/vva/dbq/officials/ and entering your ZIP code.

Be aggressive. Donate to the campaign funds of opponents of CHC members. If your own Congressional representative refuses to get involved, donate to the campaign of his or her opponent and make sure that you let your representative know that you are doing this and why. Unless and until members of Congress understand that there are consequences for their actions in acquiescing to the demands of the CHC, they will continue to do so. Make it painful for them to continue. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=9 Using an unlicensed representative http://www.immigration-information.com/forums/blog.php?b=8 Tue, 13 May 2008 21:50:02 GMT Increasingly, I am seeing complaints about poor service or improper conduct by individuals people have paid to represent them in immigration matters. These representatives are described variously as consultants, paralegals, notaries, and even “attorneys.” In almost all cases, the representative... Increasingly, I am seeing complaints about poor service or improper conduct by individuals people have paid to represent them in immigration matters. These representatives are described variously as consultants, paralegals, notaries, and even “attorneys.” In almost all cases, the representative turns out to be an unlicensed individual practicing law illegally.

I understand that applicants have limited resources and want to make their dollars stretch as far as possible, but using an unlicensed representative is a very bad idea. Those who read the Immigration Information Discussion Forum know that I encourage people, whenever possible, to prepare their own filings in non-complex matters. The simple rule of thumb is that if you understand what you are doing, there is no reason why you can’t do it yourself. If you don’t understand, if you have questions, then you probably need help.

If you need help, you do not want to put your life in the hands of someone unqualified to help you. Going to an unlicensed immigration practitioner is little different from going to an unlicensed medical practitioner when you are ill. It may be cheaper in the short term, but is it worth ruining your life?

Unlicensed practitioners are engaged in what is known as the unauthorized practice of law (UPL). There is a reason that states require people to undergo training and then licensure testing before they are allowed to undertake complex procedures on behalf of others. Lawyers, doctors, pharmacists, and many engineers are required to go through complex licensing requirements. They are also required to engage in continuing education. Most importantly, because they are licensed, the public has recourse if they do something improper or grossly negligent.

The same is not true for UPL practitioners. No one knows what kind of training they have, if any. No one knows how current their knowledge may be. Of critical importance, however, is the fact that they are not answerable to any state or federal agencies if they fail to behave properly. Worse, since they are unlicensed, any misrepresentations or other misconduct will be attributed directly to you.

The immigration service has published very detailed regulations with respect to this issue and they are worth examining.

8 CFR 1.1. . .

(i) The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the Service, or any officer of the Service, or the Board.

(j) The term representative refers to a person who is entitled to represent others as provided in §§ 292.1(a) (2), (3), (4), (5), (6), and 292.1(b) of this chapter.

(k) The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed Service forms by one whose remuneration, if any, is nominal and who does not hold himself out as qualified in legal matters or in immigration and naturalization procedure.

. . .

(m) The term representation before the Board and the Service includes practice and preparation as defined in paragraphs (i) and (k) of this section.

292.1

(a) A person entitled to representation may be represented by any of the following:
(1) Attorneys in the United States. Any attorney as defined in §1.1(f) of this chapter.

(2) Law students and law graduates not yet admitted to the bar. A law student who is enrolled in an accredited law school, or a law graduate who is not yet admitted to the bar, provided that:
(i) He or she is appearing at the request of the person entitled to representation;

(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;

(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and

(iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.

(3) Reputable individuals. Any reputable individual of good moral character, provided that:
(i) He is appearing on an individual case basis, at the request of the person entitled to representation;

(ii) He is appearing without direct or indirect remuneration and files a written declaration to that effect;

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and

(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.

(4) Accredited representatives. A person representing an organization described in §292.2 of this chapter who has been accredited by the Board.

(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.

(6) Attorneys outside the United States. An attorney other than one described in §1.1(f) of this chapter who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he/she resides and who is engaged in such practice. Provided that he/she represents persons only in matters outside the geographical confines of the United States as defined in section 101(a)(38) of the Act, and that the Service official before whom he/she wishes to appear allows such representation as a matter of discretion.

(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §292.3 of this chapter.

It is very clear than an unlicensed individual may represent someone before the government only under extremely limited circumstances and they may not charge a fee if they do.

I have a number of problems with these people. More often than not, they engage in either outright fraud and misrepresentation, or fraud by omission. They are unqualified to advise people and, as a result, deliberately or negligently tell them things that are wholly unrealistic. Finally, very often they charge more than the fees of qualified practitioners. They do an enormous amount of harm.

Finally, it is largely because of these people that the CIS takes the default position that filings contain fraudulent evidence and people are not qualified for the benefits they seek. The CIS itself is largely responsible for this problem, as they do nothing to prevent UPL practitioners from filing applications and petitions with them. I’ve seen numerous instances where CIS adjudicators at local offices knowingly discuss cases with UPL practitioner. Perhaps it is because those people are vulnerable and cannot assert the rights of their “clients” that the CIS is willing to do this.

In any case, if you decide to go with a UPL practitioner, understand that you are getting someone who is not regulated by the state, who is not answerable to any licensing organization, who is not properly trained, and who has no right to represent you before the government. If things fall apart, you will be on your own. Worse, any misrepresentations made by the UPL practitioner will be attributed directly to you. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=8 Cutoff date movement and AOS case approvals http://www.immigration-information.com/forums/blog.php?b=5 Sun, 04 May 2008 21:00:39 GMT One of the most common questions asked in the Immigration Information Discussion Forum is “If my priority date becomes current next month, how soon will the CIS approve my application?” That this question is being asked is the best evidence that there is a fundamental misunderstanding of the... One of the most common questions asked in the Immigration Information Discussion Forum is “If my priority date becomes current next month, how soon will the CIS approve my application?” That this question is being asked is the best evidence that there is a fundamental misunderstanding of the circumstances responsible for Visa Bulletin cutoff dates moving forward so rapidly.

The CIS has a massive backlog of pending employment based adjustment of status applications. Estimates put it at somewhere between 500,000 and 600,000 cases. The entire annual quota for employment based immigration is just 140,000. If the CIS were to freeze adjustment of status filings, and the State Department were to stop processing consular immigrant visa applications, the CIS has enough applications in its backlog to exhaust almost four full years of annual quotas.

This is an important concept to understand. The CIS already has enough applications in its inventory to process visas for the next four years, exhausting the quota each year.
The problem is not the availability of visas; the problem is CIS productivity.

It is precisely because the CIS is failing to process enough cases each year that the backlogs have grown and Visa Bulletin cutoff dates are moving forward. The CIS has failed, repeatedly, to adjudicate enough AOS applications each year to use up the annual quota. When they fail to close enough cases, the left over visa numbers are “wasted.” If allocated visa numbers are not used during the year in which they are authorized, they simply go away and may not be used thereafter. When the CIS fails to close enough cases, they waste visa numbers. According to the CIS Ombudsman, the CIS has wasted close to 600,000 employment based visa numbers since 1995.

When the CIS fails to close enough AOS cases in a year, the Visa Office must advance Visa Bulletin cutoff dates faster than demand actually justifies in order to attract enough new applications to use up the quota and avoid wasting visas.

At first glance, it doesn’t make sense to deliberately encourage more people to file applications for adjustment of status when there is a four year backlog of existing cases. If the CIS were doing its job, this would not be necessary. Unfortunately, the CIS cannot or will not do their job. Historically, they fall short each year.

The difference is made up by overseas consular posts. By advancing cutoff dates, people with very recent priority dates who elected consular processing are able to have their cases closed out overseas. This allows the State Department to step in and make sure that all allocated visa numbers are used each year.

Pause for a moment and consider the effect of the CIS failure to do their job. Because they can’t close cases out, the Visa Office has to artificially advance Visa Bulletin cutoff dates. This, in turn, results in more applications being filed. Consequently, backlogs grow even larger. It also means that people who elect consular processing get their cases closed much faster than those who filed years earlier, but elected adjustment of status.

As long as cutoff dates are moving forward, applicants with pending AOS applications should not expect to see much done on their cases. Some will get approved because the CIS does adjudicate tens of thousands of cases each year. Cutoff date movement, however, means that the CIS is not processing cases at a rate sufficient to exhaust the quota and this means that more and more applications are going to get filed.

Finally, the CIS Ombudsman has criticized the CIS for not processing cases on the basis of date filed. Rather, they pick easy cases in preference to more complex cases as well as more recently filed cases in favor of those that have been pending longer. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=5 Complex and irrelevant facts in postings http://www.immigration-information.com/forums/blog.php?b=4 Fri, 02 May 2008 17:11:19 GMT It is precisely because I know that people are worried and anxious about immigration matters that I mantain the Immigration Information Discussion Forum. Please do not think for a moment that I am making light of the legitimate concerns of people who post there. With that disclaimer, let me give... It is precisely because I know that people are worried and anxious about immigration matters that I mantain the Immigration Information Discussion Forum. Please do not think for a moment that I am making light of the legitimate concerns of people who post there. With that disclaimer, let me give you some insight into what it looks like from my side:

"Rhinohorn isnoutso pigfellow but him ist gonz wurst. Kikikuki. Hopopodorme. So-beast! No chare of beagles, frantling of peacocks, no muzzing ofthe camel, smuttering of apes. Lights, pageboy, lights! Brights we'll be brights. With help of Hanoukan's lamp. When otter leaps in outer parts then Yul remembers Mei. Her hung maid mohns are bluming, look, to greet those loes on coast of amethyst; arcglow's seafire siemens lure and wextward warnerforth's hooker-crookers. And now with robby brerfox's fishy fable lissaned out, the threads simwhat toran and knots in its antargumends, the pesciolines in Liffeyetta's bowl have stopped squiggling about Junoh and the whalk and feriaquintaism and pebble infinibility and the poissission of the hoghly course. And if Lubbernabohore laid his horker to the ribber, save the giregargoh and dabardin going on in his mount of knowledge (munt), he would not hear a flip flap in all Finnyland. Witchman, watch of your night? Es voes, ez noes, nott voes, ges, noun. It goes. It does not go. Dark-park's acoo with sucking loves. Rosimund's by her wishing well. Soon tempt-in-twos will stroll at venture and hunt-by-threes strut musketeering. Brace of girdles, brasse of beauys. With the width of the way for jogjoy. Hulker's cieclest elbownunsense. Hold hard! And his dithering dathering waltzers of. Stright! But meet-ings mate not as forsehn. Hesperons! And if you wand to Liv-mouth, wenderer, while Jempson's weed decks Jacqueson's Island, here lurks, bar hellpelhullpulthebell, none iron welcome. Bing. Bong. Bangbong. Thunderation! You took with the mulligrubs and we lack mulsum? No sirrebob! Great goodness, no! Were you Marely quean of Scuts or but Chrestien the Last, (our duty to you, chris! royalty, squat!) how matt your mark, though luked your johl, here's dapplebellied mugs and troublebedded rooms and sawdust strown in expectoration and for ratification by specification of your information, Mr Knight, tuntapster, buttles; his alefru's up to his hip. And Watsy Lyke sees after all rinsings and don't omiss Kate, homeswab homely, put in with the bricks. A's the sign and one's the number. Where Chavvyout Chacer calls the cup and Pouropourim stands astirrup.

Based on this, will my priority date be current next month and how do I complete item 16b on the form I'm thnking of?"

[Bonus points to the first person to identify the literary passage from one of my favorite authors.] ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=4 Pending legislation 5/2/2008 http://www.immigration-information.com/forums/blog.php?b=3 Fri, 02 May 2008 16:17:42 GMT The past month has see the introduction of more immigration bills in Congress than in the entire previous year. More importantly, these bill are all serious legislative proposals. To me, this means that Congress is starting to give serious thought to intermin relief for legal immigration. The... The past month has see the introduction of more immigration bills in Congress than in the entire previous year. More importantly, these bill are all serious legislative proposals.

To me, this means that Congress is starting to give serious thought to intermin relief for legal immigration. The various legislative measures propose to expand the H caps, expand employment and family based quotas, and create more controls on illegal immigration.

It will be interesting to see what Congress does in the next two months. If nothing has passed by the end of July, then we aren't likely to see any new legislation until the lame duck session, following the November election.

The odds have definitely improved, however, and it does appear that we will see something this year. ]]> Ron Gotcher http://www.immigration-information.com/forums/blog.php?b=3