Immigration Planning in 2012
This series of articles examines some of the key immigration
developments of 2011. We discuss how these developments could affect
MurthyDotCom and MurthyBulletin readers in 2012 and make
recommendations for strategic planning on the U.S. immigration law front in
2012. Our focus here is the forward movement of EB2 priority dates for
nationals of India and China, and an analysis of the issues to help people
plan and file their I-485s or obtain their immigrant visas from abroad.
Priority Date Progression in EB2 for India and
There was extremely good news for many Indian and Chinese nationals in
the second half of 2011, as the priority dates for the employment-based,
second preference (EB2) green card category advanced rapidly. The cutoff
dates in the December 2011 U.S. Department of State (DOS) Visa Bulletin
moved forward by more than four months. This was followed by the January
2012 DOS Visa Bulletin EB2 India and China jump of almost ten additional
months. The February 2012 Visa Bulletin shows the rapid forward movement in
EB2 for India and China continues, with advancement of a full year.
The new cutoff date for both EB2 India and China is January 1, 2010 in
February 2012. While the March 2012 DOS Visa Bulletin has not yet been
released, the DOS projects that EB2 India and China will move by a few
months in March 2012. This development means that many Indian and Chinese
nationals and their families are now eligible to file the final stage in
their "green card" applications. Along with this filing, they can receive
the benefits that accompany an application of this type, such as
unrestricted employment authorization and advance parole.
Advancement in prior months led to many long-awaited green card approvals
for Indian and Chinese nationals in the EB2 category. Prior to this year's
forward movement, these dates were stalled with minimal movement for a long
period of time. At the Murthy Law Firm, our Green Card Department has been
busy filing I-485 applications for our many clients who, after a long wait,
have finally reached this stage. Anyone who has seen her/his priority date
become current should endeavor to file the I-485, if otherwise
eligible to do so.
Planning for 2012: Priority Dates and I-485s
The rapid movement in EB2 for nationals of India and China is, of
course, a welcome development for most. However, as explained in several
articles available on MurthyDotCom, this rapid forward movement is a
temporary phenomenon. Thus, it is unclear if the good news will continue for
these applicants. For more details on the reasons for this advancement, see
our October 28, 2011 NewsBrief,
Predictions: Significant EB2 Movement, on MurthyDotCom.
Priority dates can move forward - as they have been - and they can move
backward. This movement primarily is based on the number of green card
filings with the U.S. Citizenship and Immigration Services (USCIS), to a
lesser extent, filings with the DOS for consular processing. The cutoff
dates are established by the DOS based on calculations of supply and demand.
The DOS must balance the competing goals of ensuring that all immigrant visa
numbers allocated for a particular fiscal year (FY) are utilized, while
trying to avoid running out of visa numbers before the end of the FY.
The cutoff date in the February 2012 Visa Bulletin was advanced in order to
create a demand for visa numbers in upcoming months. Therefore, if the USCIS
begins to receive more green card applications than expected, the DOS may
find it necessary to move the cutoff dates backward - a procedure known as
The DOS previously advised that retrogression may occur in summer of 2012.
However, given the number of case filings generated by the cutoff date
advancement, the DOS could need to revise their calculations. There are many
factors that impact the demand for visa numbers and surprises can occur with
each monthly visa bulletin.
In addition to the new I-485 filings, the use of the strategy known as
EB3 to EB2 upgrading has created a demand for EB2 visa numbers that is
difficult to predict. For more information on this strategy, see our July 1,
Considerations for EB3 to
EB2 "Upgrade," also
available on MurthyDotCom.
If the priority dates retrogress, it will be important for people who are
current to file during the months when their respective dates are
current. Visa bulletins are always issued several weeks prior to their
validity. (That is, the May Visa Bulletin is issued in early to mid April,
and so forth for each month in the year.) Therefore, there should be some
advance notice of any retrogression.
Conclusion: Take Advantage of Opportunity to
Unless there is some reason not to do so, those with priority dates that are
current, should file or prepare to file before the end of the particular
months in which their dates are current. Otherwise, they may have to wait,
yet again. More information on the matter of missing filing opportunities
can be found in our December 2, 2011 NewsBrief,
Priority Date Finally
Current! How Soon Should I-485 be Filed?, on MurthyDotCom.
Those who need advice or assistance with their I-485 filings are welcome to
contact the Murthy Law
Parts 1 and 2 of this article examine some of the major immigration
developments in 2011, and analyze the potential impact of those developments
for 2012. We previously discussed the forward movement of the EB2 India and
China cutoff dates in the visa bulletin. Here we look at related matters in
the H1B category: site visits and investigations, and H1B amendments in
which there is relocation of the employee's worksite.
Increased Enforcement by USCIS, ICE, and DOL
One of the defining themes for 2011 has been an increase in enforcement
and investigation activity by the U.S. Citizenship and Immigration Services
(USCIS), Immigration and Customs Enforcement (ICE), and the U.S. Department
of Labor (DOL). USCIS investigators visit the worksites of H1B workers.
These investigators generally have copies of H1B petitions and knowledge of
the content of each filing. When they arrive at a worksite, they primarily
ask questions about the duties performed by the H1B employee and the wages
paid to the employee.
More recently, we at the Murthy Law Firm have become aware of instances in
which investigators ask detailed questions regarding the supervision of the
H1B employee. This line of questioning is particularly troubling. It relates
to the January 2010 Neufeld Memorandum on the employer-employee
relationship, which has caused many problems for IT consulting companies.
This seems to indicate an emphasis on this matter at the USCIS investigative
level, even though the issue would have been reviewed by the USCIS prior to
approval of the H1B petition in all but the oldest cases.
Common Problem with H1B Employee's Relocation
A common problem that arises with regard to site visits concerns H1B
employees who work at client locations. These workers often change clients
and/or locations during the course of their H1B employment. For many years,
it has been the common legal interpretation and understanding that, when
this occurred, it was not necessary to amend the H1B petition. Most
employers simply obtained a new labor condition application (LCA) from the
DOL for the new work location. The USCIS is not notified of the change
unless an H1B amendment is filed. Therefore, the USCIS has no way of knowing
that an H1B employee has been relocated, based solely on a new LCA.
The USCIS investigator conducts the site visit based upon the location
identified in the H1B filing. If the employee has been relocated, the
investigator does not find the employee at the address stated as the
location of employment in the H1B petition. The personnel at the client
location may not even be familiar with the individual. This results in the
USCIS investigator reporting that the H1B employee is not employed pursuant
to the H1B petition.
When the USCIS is unable to confirm the H1B employment, it generally sends
an eMail to the employer or to the employer's attorney, asking for
confirmation of ongoing employment and the location of that employment.
These eMail inquiries typically have deadlines of only two or three days. If
the employer can satisfactorily respond, this might resolve the issue. If
not, a notice of intent to revoke (NOIR) the H1B petition may be
forthcoming, which places both the employer and the employee in serious
H1B LCA Update vs. H1B Amendment
As described above, one of the common problems faced by H1B consulting
employees is a USCIS site visit following work relocation. The USCIS is not
made aware of the filing of a new LCA for the new worksite location, and the
investigator, therefore, goes to the original worksite.
It is becoming increasingly clear that it is no longer safe to rely solely
on updating the LCA in many instances when an H1B employee changes work
locations. In addition to concerns about site visits, we have also begun to
see new wording in USCIS requests for evidence (RFEs), asking for proof of
H1B amendments for any relocation of the employee during the H1B petition
validity period. The General Counsel of the USCIS California Service Center
also has publicly indicated the opinion that an amended H1B is required in
addition to obtaining a new LCA. It is possible that more definitive
guidance on this matter will be released by the USCIS later in 2012, but
this is not a certainty.
Background on Filing LCA Amendments for H1Bs
The legal issues on the appropriate procedures for relocating H1B employees
are somewhat complex and beyond the scope of this article. For many years it
generally was understood that H1B workers could be relocated based on
updated LCAs. The USCIS policy, however, is clearly moving to a more
When planning for 2012 and beyond, therefore, employers who do not wish to
battle the USCIS on this matter should shift from the traditional
practice of relying on LCA updates when moving their employees. Many
companies are reluctant to adopt the practice of filing an H1B amendment, as
it is often administratively impractical, and is significantly more
expensive. However, without an H1B amendment, there is increased legal
exposure for both the employer and the employee if the USCIS determines that
an employer should have amended the petition.
It is always important to identify trends and make any needed changes. The
emerging trend toward restrictive interpretations regarding the filing of
H1B amendments is having an impact on H1B practice for employers,
particularly IT consulting companies. If this policy shift continues, it is
likely to require changes for many employers in 2012 and beyond.
"This article originally appeared in Murthy Bulletin on www.Murthy.com Reprinted with permission"
About The Author
Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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