June 2013 Visa Bulletin Analysis Essay

The U.S. State Department has just released the January 2018 Visa Bulletin which is the fourth Visa Bulletin for the FY2018 fiscal year. The headline in the upcoming month’s Visa Bulletin is the continued anemic forward movement in EB-2 India/China and EB-3 India.   EB-3 China continues to have a more favorable cutoff date than EB-2 China which creates favorable conditions for EB-2 to EB-3 China downgrades.

Summary of the January 2018 Visa Bulletin – Employment-Based (EB)

EB CategoryJan 2018Dec 2017Change
Employment Application Final Action Dates (determines when an I-485 or IV can be approved)
EB-1 ROW, MX, PHCurrentCurrentNo change
EB-1 IndiaCurrentCurrentNo change
EB-1 ChinaCurrentCurrentNo change
EB-2 ROW, MX, PHCurrentCurrentNo change
EB-2 IndiaNov 22, 2008Nov 1, 2008Forward by 3 weeks
EB-2 ChinaAug 8, 2013Jul 1, 2013Forward by 6 weeks
EB-3 ROWCurrentCurrentNo change
EB-3 IndiaNov 1, 2006Oct 15, 2006Forward by 2 weeks
EB-3 ChinaApr 14, 2014Mar 8, 2014Forward by 5 weeks
EB-3 MexicoCurrentCurrentNo change
EB-3 PhilippinesFeb 15, 2016Jan 15, 2016Forward by 1 month
Dates for Filing Employment Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check USCIS’s site.
EB-1CurrentCurrentNo change
EB-2 ROW, MX, PHCurrentCurrentNo change
EB-2 IndiaFeb 8, 2009Feb 8, 2009No change
EB-2 ChinaNov 15, 2013Nov 15, 2013No change
EB-3 ROWCurrentCurrentNo change
EB-3 IndiaJan 1, 2008Jan 1, 2008No change
EB-3 ChinaSep 1, 2015Sep 1, 2015No change
EB-3 MexicoCurrentCurrentNo change
EB-3 PhilippinesAug 1, 2016Aug 1, 2016No change

Please note that USCIS will determine, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates. Please see the section below.

Summary of the January 2018 Visa Bulletin – Family-Based (FB)

FB CategoryJan 2018Dec 2017Change
Family Application Final Action Dates (determines when an I-485 or IV can be approved)
FB-1 ROW, China, IndiaMar 15, 2011Feb 1, 2011Forward by 6 weeks
FB-1 MexicoMay 1, 1996Apr 1, 1996Forward by 1 month
FB-1 PhilippinesJan 1, 2005Jan 1, 2005No change
FB-2A ROW, China, India, PhilippinesFeb 1, 2016Dec 22, 2015Forward by 5 weeks
FB-2A MexicoJan 1, 2016Nov 15, 2015Forward by 6 weeks
Dates for Filing Family Visa Applications (determines when an I-485 can be filed)
USCIS will determine and announce within a week – please check USCIS’s site.
FB-1 ROW, China, IndiaJan 1, 2012Jan 1, 2012No change
FB-1 MexicoNov 1, 1996Nov 1, 1996No change
FB-1 PhilippinesOct 1, 2007Oct 1, 2007No change
FB-2A ROW, China, India, PhilippinesNov 1, 2016Nov 1, 2016No change
FB-2A MexicoNov 1, 2016Nov 1, 2016No change

Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

Final Action Dates for EB-3 China Ahead of EB-2 China – Continuing Favorable Conditions for Downgrading

Clients and readers who are interested in EB China will note that EB-3 China has (again) a more favorable cutoff date than EB-2 China by about 8 months (EB-3 China is at March 15, 2014 while EB-2 China is at August 8, 2013).

Here’s how this can work:  an EB-2 China applicant can seek to “downgrade” their preference category, while retaining their priority date, in order to have a current priority date under the EB-3 category and to be able to file their I-485 application.   As a background, many EB-2 PERM Labor Certifications are drafted in a way allowing the subsequent filing of an EB-3 I-140 petition on the basis of the same PERM — thereby retaining the priority date under the EB-3 category.    It is possible to use a PERM which has already expired if it has been used in support of a previous I-140 and in many cases it is even possible to file a new EB-3 I-140 filing under premium processing.   As a result, if the premium processing request is accepted, it may be possible to obtain an approved downgraded and current EB-3 I-140- within a few weeks, and then promptly seek to file I-485 adjustment of status which provides additional benefits such as independent work authorization (for family members too) plus AC21 job portability after 180 days.

We caution our clients and readers, especially the China employment-based applicants, that the historic average time for an EB-3 China priority date to become current and for a green card under this category to be approved is still higher than the historic average wait time under EB-2.   As a result, even if it is possible that an EB-3 “downgrade” may allow the I-485 filing, we still believe that ultimately, an EB-2 China application may still take slightly less time to approve.   However, for many applicants, the benefit of early I-485 filing may be worth it to go through the EB-3 “downgrade” process.

Our office is happy to consult applicants who are in this situation and are considering filing under EB-3 to take advantage of the more advanced EB-3 China cutoff dates.   Please contact us if we can help.

Current Date?

Our office stands ready to assist in the applicable process to take advantage of the significant restructuring in the way the cutoff dates are determined and published.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the January 2018 Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

As one of the senior attorneys and the founding member of the Capitol Immigration Law Group, Mr. Michailov is at the forefront of the immigration law community. He represents individuals from more than 50 countries in their quest for U.S. immigration options and solutions. He also represents companies and organizations ranging from small entrepreneurs to multinational corporations in meeting their goals to recruit, hire and retain talented foreign nationals while maintaining full compliance with the relevant immigration rules and procedures.

Many of our clients and readers are already aware of the move by U.S. Citizenship and Immigration Service (“USCIS”) to issue what are hundreds, or perhaps even thousands, of very similar, if not identical, requests for evidence (“RFE”) on pending employment-based primary and derivative Form I-485, Application to Adjust Status.   Most of the RFEs were issued and dated June 13th or June 14th and hardcopies are starting to be delivered to individual applicants and to their attorneys.     Our office has also started receiving such documents and we have been receiving numerous inquiries with respect to this massive RFE event.

Identical I-485 RFEs

It appears that the majority of these RFEs were issued by the Texas Service Center and most appear to be for EB-2 India applicants.    In terms of substance, the RFEs appear to be almost identical and seek information and clarification on two points – (1) evidence of continuous employment authorization in the U.S. from the date the I-485 application was filed to the date of the RFE and (2) a current (and original) employment verification letter from the original sponsoring employer or, in cases of AC21 porting to a new employer, from the new employer.   Please see a redacted sample of the RFE template issued.

Maintaining Employment Authorization

The RFE requests proof of employment authorization starting from the date the I-485 was filed until the present.   For many people this evidence would include copies of Employment Authorization Documents (EAD) or H-1B (or other employment-authorized status) approval notices/Form I-94 cards.   In many instances, I-485 applicants continue to maintain their H-1B status even after they file I-485 (and obtain EAD) or even after they switch an employer pursuant to AC21.    In other cases, I-485 applicants simply drop their H-1B and continue employment pursuant to a valid and uninterrupted EAD.

With this RFE, USCIS is trying to determine whether I-485 applicants may have been employed without authorization during the time the I-485 has been pending.   The significance is that in those cases where the I-485 applicant is deemed to have been employed without authorization (or without status) for more than 180 days since the last entry into the U.S., the government may deny the I-485 application under section 245(c).    Please see our article on this bar to adjustment and the section 245(k) defense.

As a result, special attention should be paid to ensuring that complete employment authorization history is provided.  If there are any gaps, we urge extreme caution.

Original Employment Verification Letter

The RFE also asks for an original employment verification letter (“EVL”) from the original (if no job change) or a new (if jobs changed pursuant to AC21) employer.   The EVL should be in original, on employer letterhead, and should confirm that the job offer described in the I-140 petition exists (for sponsoring employers).   In situations where the I-485 applicant has ported their I-485 to a new employer (or to the same employer but on a different position) pursuant to AC21, the RFE seeks an EVL from the new employer confirming that the new position is same or similar to the position noted in the I-140 petition.

As mentioned above, the EVL should be in original, currently-dated, describe the title and duties of the position, the salary, the minimum educational or training requirements, and the date the employment began (or will begin).

Derivative Dependents Issued Identical RFEs

What is somewhat troubling is that USCIS has issued RFEs with identical language to derivative dependents.    Specifically, dependents’ RFEs include the phrase “You are an Employment-Based Principal Applicant” which is plainly incorrect for derivative beneficiaries.

Also, the RFE for derivatives asks for evidence in the same two areas as primary applicants without any consideration that such documents or information may not be applicable for derivative family member applicants.   For example, a derivative applicant’s RFE asks for proof of continued employment authorization since the filing of I-485.   Many derivative applicants, especially children, do not seek and obtain EAD work permits as part of their I-485 application.   In fact,  whether or not a derivative applicant is employed (unless on status permitting employment such as H-1B or L-1), is not a factor in the I-485 adjudication.

The RFE for derivative applicants also asks for a letter from “your petitioning (Form I-140) employer.”    Derivative I-485 applicants, by definition, do not have a petitioning I-140 sponsor employer.    It is unclear what is USCIS’s motive — whether they seek such a letter from the primary applicant’s sponsoring employer, or simply that they reused the template without regard to a specific case’s parameters.

Attorney Assistance with Preparing RFE Response

Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.

We are also happy and available to assist with a more comprehensive RFE response representation.   Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.

Conclusion

There is much speculation as to what is the USCIS intent in generating so many RFEs in such a short period of time without, in many cases, careful consideration of the facts of a specific case.    We will not speculate since and we do not yet have an official position from USCIS.    For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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