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December 18, 2013

What's to Come: The Good, the Bad and the Ugly Predictions for Immigrant Visa Processing Times for 2014

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In 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • It is likely that the processing times for EB-3 visas for Mexico, China and the rest of the world will continue to progress at a healthy rate in 2014. However, be wary as there may be a greater than expected demand in these areas, causing stagnation or even retrogression.

The Bad

  • The processing time for all India EB visas will remain stagnant through the beginning of 2014.
  • It is very likely that a cut-off date for China EB-5 visas will be introduced in 2014.
  • A cut-off date for EB-5 visas for the rest of the world may also be imposed in 2014.
  • The processing time for China EB-2 visas will continue to move very slowly.

The Ugly

  • The cut-off date for EB-3 visas worldwide may retrogress in 2014.
  • There may be retrogression of the cut-off date for the Mexico F-2A visa category in 2014.

While these forecasts are intended to help you plan for the upcoming year, please keep in mind that these are only predictions and are subject to change.

December 18, 2013

A Unique Opportunity for Chinese Nationals Seeking Employment-Based Immigrant Visas

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Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary ("downgrade"). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent "upgrading" from EB-3 to EB-2, the beneficiary's priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

"Downgrading" from EB-2 to EB-3

Thanks to a unique exception to the 180-day validity period rule, employers who have already petitioned for a Chinese beneficiary under the EB-2 immigrant visa category may file a second I-140 using the original labor certification to support an EB-3 petition. While it is uncommon to "downgrade" from EB-2 to EB-3, employers of Chinese beneficiaries with either a pending or approved EB-2 petition may wish to consider filing under the EB-3 category because they could move ahead in the visa queue.

Considering the recent progression rate for EB-3 cut-off dates and the likelihood that this trend will continue, there is a very good chance that those Chinese nationals who choose to "downgrade" from EB-2 to EB-3 will receive an earlier priority date. However, even if by the time the EB-3 petition is filed the EB-2 cut-off date surpasses the EB-3 cut-off date, there is nothing to lose, as the beneficiary will retain the earliest priority date.

EB-2/EB-3 Concurrent Filing

Employers who intend to file for an employment-based immigrant visa on behalf of a Chinese national should consider concurrently filing the Form I-140 under both the EB-2 and EB-3 visa category using the same labor certification. Pursuant to 8 CFR §204.5(e), the beneficiary will be assigned the earlier priority date.


This unique opportunity for Chinese nationals will not last forever. Thus, it is important to act fast. Keep in mind that there are several requirements and strategies to consider when concurrently filing under EB-2/EB-3 or subsequently filing a second employment-based petition.

August 6, 2013

USCIS Clarifies Same-Sex Marriage Immigration Rules

1392509_rainbow_flag.jpgEver since the Supreme Court ruled last month that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex married couples have been eligible to apply for green cards based upon marriage to a US citizen or US permanent resident of the same-sex. The US Citizenship and Immigration Services (USCIS) has just issued an announcement clarifying the rules that it uses to adjudicate same-sex marriage based cases. The announcement seems to indicate that virtually every area of immigration law, the USCIS will treat same-sex marriages exactly the same as opposite-sex marriages.

Green cards are now available for same-sex spouses of US citizens and US permanent residents

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July 17, 2013

New T Visa and U Visa Changes Benefit Applicants

1147342_security_fence_3.jpgThe US Department of State issued last month a June 2013 cable explaining recent T and U visa changes that were enacted by Congress in March 2013. These changes grant several protections previously unavailable to petitioners.

What are the U and T visas?

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July 10, 2013

AAO Case Decision re Entrepreneurs: EB-1 Intracompany Transferee Visa

1409592_gavel_2.jpgIn order to grasp a true understanding of the criteria a foreign national entrepreneur must meet in order to qualify for an immigration visa, it is extremely helpful to study relevant court case law that illustrate the real-world application of the black letter law. The USCIS Administrative Appeals Office issued a recent and important ruling on June 13, 2013 in a case involving an EB-1 immigrant visa petition for alien worker as a multinational executive or manager.

This case is important because the AAO's decision here is favorable toward foreign national entrepreneurs who may seem ineligible based upon the black letter law, yet actually do meet the necessary criteria upon closer review.

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July 8, 2013

Obama Administration Gives Green Light to Same-Sex Marriage Immigration Visa

829079_wedding-ring.jpgWill the Obama administration allow same-sex married spouses to get green cards based on marriage to a US citizen or resident? All signs point to yes. The US Supreme Court made headlines last Wednesday when it struck down the Defense of Marriage Act (DOMA) and granted same-sex married couples access to the same benefits that opposite-sex married couples enjoy. Given Obama's original campaign promise to uphold DOMA, there may have been some doubt as to how the Obama administration would actually administer the change. But same-sex couples can now breathe a sigh of relief thanks to the administration's currently announced public stance.

DOMA, which was enacted in 1996 and signed into law by President Bill Clinton, has since been the obstacle that has prevented same-sex married couples from getting federal benefits that are available to opposite-sex married couples. This includes immigration benefits as well because DOMA is the reason why same-sex foreign nationals have been banned from getting green cards based upon marriage to a US citizen or permanent resident.

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June 29, 2013

US Supreme Court Decision Makes Same-Sex Couples Eligible for Green Cards

1038827_u_s__supreme_court_1.jpgWhat is the Impact of this decision on Immigration?

For the first time in history, Gay and lesbian couples will be eligible to get green cards for their foreign national spouses as a result of a recent US Supreme Court ruling that will allow same-sex couples access to federal benefits. The Court declared in its opinion last Wednesday June 26, 2013, that section 3 of the Defense of Marriage Act (DOMA) is in violation of the Fifth Amendment and therefore unconstitutional. DOMA is a federal statute that forbids the US government from recognizing same-sex marriages for federal purposes, even when such marriages are recognized in same-sex couples' home states.

The term "marriage" is not defined in the Immigration and Nationality Act (INA). However, according to US Department of State Foreign Affairs Manual at 9 FAM 40.1 N1, the validity of a marriage for immigration purposes is defined by section 3 of DOMA, a statute that forbids the federal government from recognizing same-sex marriage.

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June 28, 2013

Your I-485 Interview with USCIS: What to Expect

334225_press_conference.jpgAfter you file the Application to Register Permanent Residence or Adjust Status Form I-485, some months later you will be scheduled to meet with a USCIS immigration officer for an interview. Some people are nervous about attending the interview for fear that the officer may decide to deny the application. Being nervous may be a result of uncertainty of what to expect. Therefore, this article explains the USCIS interview process in greater detail so that you can know what to expect and be prepared.

What is the purpose of the USCIS interview?

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January 2, 2013

Being a Public Charge Will Stop You from Getting Your Green Card

296223_empty_pocket_1.jpgYour I-485 application to adjust status to permanent residence can be denied if you are deemed to be a "public charge." Under immigration law, you are a public charge if you have received public cash assistance to maintain your income or you were institutionalized for long-term care at the government's expense.

Public benefits that will make you a public charge

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December 22, 2012

Upcoming Immigration Reform

889854_freedom_2.jpgImmigration reform was a hot topic in the past presidential election, albeit for a short period of time. Now that the election is over, many are looking ahead to the possible changes that could be taking place. There are several areas of possible reform where immigrants are eager to see changes. These areas include, people who entered without inspection, undocumented youth, highly educated immigrants and undocumented workers.

Obviously, the most important area of reform for those without status is legalization. It is estimated that there are about 11 million undocumented people currently in the United States. It will be interesting to see how difficult any path to citizenship will be, especially how long the undocumented person needs to be in the country before they can apply for the new hypothetical temporary status and for how long they must maintain that status before they can get their green card. The new roadmap to naturalization might be a long winding one, but many will probably be excited just to have a chance to become U.S. citizen, where before there was little legal recourse available to them and they were forced to live on the fringes of society.

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December 11, 2012

EB5 Immigrant Investor Visa: Make an Investment, Get a Green Card

1037536_money_in_hand.jpgThe EB5 immigrant visa category is a way for foreign national investors to obtain lawful permanent residency in the US, otherwise known as the green card. This visa category is for immigrant investors who will be engaged in a commercial enterprise that produces 10 US jobs and will benefit the US economy.

In order for a foreign national to qualify, the person must make an investment of $1 million. The investment requirement lowers to $500,000 if it can be established that the investment will be for what is known as a targeted employment area, which means a rural area or an area having at least 150% of the national unemployment average.

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December 10, 2012

EB2 National-Interest Waiver Petition Should Show Past Impact

1223513_us_flag_1.jpgThe EB2 employment-based second preference immigration visa requires a labor certification and job offer. There is an exception to these requirements if it can be established that granting a visa is in the national interest of the United States. This is the national interest waiver. The criteria are a three-part test established by case law:

  1. The foreign national's work must be in an area of substantial and intrinsic merit;
  2. It must be established that the foreign national's benefit will be national in scope;
  3. The foreign national must benefit the US to a substantially greater degree than those with equivalent minimum qualifications;

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December 1, 2012

Consular Processing vs. Adjustment of Status: Which Should I Choose?

file000537259480.jpgWhen making the decision whether to file for adjustment of status (AOS) in the United States or to get consular processing (CP) abroad, there are several factors to examine. The processing time to get an immigrant visa and the time to get adjustment of status can vary. Many foreign nationals are eager to finish the process as fast as possible. Employment-based immigrants may worry about getting laid off before their process has completed. Family-based immigrants may be anxious to ultimately reach naturalization and obtain US citizenship so that they may begin filing petitions for other family members.

Advantages of Adjustment of Status

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November 30, 2012

STEM Immigration Reform Bill up for House Vote Today

1339419_washington_dc_capitol.jpgA Republican bill, named the STEM Jobs Act, will come to a vote today that would grant 55,000 US permanent resident visas, otherwise known as green cards, to foreign nationals who graduate from US colleges with advanced degrees in the technology fields of science, technology, engineering, and mathematics.

The bill is expected to pass in the Republican-controlled House of Representatives. However, it seems likely the bill will die in the Democrat-led Senate. Democrats oppose the bill because they say it will offset the new STEM green cards by doing away with the Diversity Immigrant Visa Program that grants immigrant visas to foreign nationals of mostly African nations, which normally have low US immigration rates.

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November 27, 2012

New Deferred Action DACA Bill Introduced in US Senate

918333_u_s__capitol_building.jpgLegislation was introduced in the US Senate today that would give legal immigration status to young foreign nationals who came to United States as undocumented children. The bill looks similar to the new Deferred Action for Childhood Arrivals introduced by the Department of Homeland Security this summer. It goes even farther as it ultimately offers permanent legal status and ultimately US citizenship.

The bill was introduced by three Republicans, Arizona Sen. Jon Kyl, Texas Sen. Kay Bailey Hutchison, and Sen. John McCain. This shift in Republican immigration policy seems to come in response to the recent barrage from several political pundits and experts who have advised the Republican Party to reach out to the Latino community. However, it's unlikely that Democrats will allow the Republicans to steal away their thunder on the immigration issue.

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