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I-130 Petitions For Alien Spouses, PERM Processing Times, H-1B Cap Numbers, And Prioritization Of H-1B Cap Case Adjudications

by Alan Lee

In a reported meeting of the American Immigration Lawyers Association D.C. chapter on September 22, 2010, with Charles Oppenheim, the Chief of the Visa Control and Reporting Division of the Visa Office, Mr. Oppenheim stated that he expects priority dates in the family based categories to continue advancing relatively quickly, particularly in the F-2A and F-2B categories, and that the F-2A category may be current or close to being current by February 2011. In times past, attorneys have advised permanent residents in many cases who marry aliens that, because of the backlogged date of the F-2A category (even one year ago (October 2009) backlogged over four years (June 1, 2005)), they could wait until they became U.S. citizens before sending in I-130 relative petitions to the U.S.C.I.S. With the rapid advances in the F-2A category, permanent residents whose alien spouses are in the States and eligible to adjust status to permanent residence should consider filing I-130 relative petitions immediately if they have not already done so at this time. (This does not include situations in which the permanent residents have begun the naturalization process and are certain to pass, or in which illegal alien beneficiaries are not eligible to adjust status unless the permanent resident becomes a U.S. citizen, e.g.-those who entered on parole or visas and do not have the benefit of Section 245(i) which allows most illegal individuals to adjust status upon the payment of a fine amount of $1,000 if they filed either labor certification applications or immigrant visa petitions by April 30, 2001, and were physically present in the U.S. on December 21, 2000). The same suggestion sans the part on illegal alien beneficiaries applies to situations in which the beneficiaries are overseas. Mr. Oppenheim also expects the EB-2 and EB-3 categories for China and India to have very little movement over the next few months, and confirmed our previous analysis that India was recently the big winner when employment based visa numbers were underutilized by the rest of the world thus allowing approximately 20,000 EB-2 numbers for India and nearly 6,500 for China. (See our news update 9/11/10 - "H-1B Cap Number Hits 50,000; China H-1B Holders Allowed Multiple Entry One Year Visas; India-Born Big Winners in Underutilization of Immigrant Visas in EB-2 Category" ).

As of August 31, 2010, PERM labor certification processing times as reported by the Department of Labor are: analyst review for cases filed in May 2010; decisions on audited cases initially filed in August 2008; standard appeals for cases first filed in March 2008; and current for cases in which the DOL has conceded error. PERM was initially instituted to clear up long backlogs by having all recruitment performed before submission, and having the cases electronically processed. Unfortunately the PERM promise of adjudications within months is beginning to fall by the wayside. Many more cases than before are audited and the 2 plus year backlog on these cases and on those involving appeal is unacceptable. DOL must do more to bring the times for audited and appealed cases up to speed.

As of October 1, 2010, the amount of FY-2011 H-1B use as reported by U.S.C.I.S. is 55,500 new petitions against a total cap of approximately 85,000, of which 40,600 are counted against the general 65,000 cap, and 14,900 against the 20,000 U.S. Masters or higher degree cap. Lacking unforeseen developments, the cap should conservatively be available into the early months of 2011. In the past two months since the U.S.C.I.S. count of July 30, 2010 (38,900), the agency has estimated H-1B usage to be 16,600 or approximately 8300 per month. In the most recent three weeks plus since September 3, 2010, however, usage has only been 5500 numbers. As total availability is now still approximately 29,500, the likelihood of exhaustion in the near future appears remote.

The current official processing time of the Vermont Service Center for H-1B cap cases as of September 15, 2010, is for cases receipted on April 10, 2010, and this almost six month delay in adjudication on the processing time chart is of course unacceptable as the fiscal year for which the cap is allotted (10/1/10-9/30/11) has already begun and cap workers with approved cases can begin work immediately. (Our recent experience has been that the Vermont Service Center is actually three-four months behind, but this is still unacceptable to most employers requiring H-1B workers who have already paid $2,320 to the agency in most cases and expected them to be available for work on October 1st). To this end, U.S.C.I.S. advised the American Immigration Lawyers Association on September 29th that both the Vermont Service Center and California Service Centers have begun devoting additional resources and prioritizing adjudication of pending cap subject H-1B petitions in an attempt to bring processing times within 60 days as soon as possible. That is all well and good, but one questions why the situation was allowed to devolve to the point that it has. It is not as if U.S.C.I.S. was inundated with H-1B cap cases and could not keep up with the flow. It was entirely foreseeable that employers would wish their H-1B sponsored people to begin working on the first day possible, October 1st. We suggest that U.S.C.I.S. devote more resources prior to October to H-1B cap adjudications in the future lest it be accused of deliberately slowing down adjudications for the sake of obtaining further $1,000 premium processing fees for cases which are pending at its service centers.

This article 2010 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

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