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December 2008 Visa Bulletin
Released
The December 2008 Visa Bulletin has been released by the
U.S. Department of State (DOS). Most cut-off dates for
employment-based immigrant visas will not change for the
month of December. The EB-1, EB-2 and EB-3 categories will
remain the same as they did in the November Visa Bulletin.
December 2008
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Other |
China |
India |
Mexico |
Philippines |
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
1-Jun-04 |
1-Jun-03 |
C |
C |
|
3rd |
1-May-05 |
1-Feb-02 |
1-Oct-01 |
1-Sept-02 |
1-May-05 |
|
Other Workers |
15-Jan-03 |
15-Jan-03 |
15-Jan-03 |
15-Jan-03 |
15-Jan-03 |
The Visa Bulletin is a monthly bulletin posted by the DOS
to forecast the green card availability for the coming
month. Each month a set cut-off date is established for each
immigrant visa category. A foreign national whose priority
date is before the cut-off date for their particular
employment based category is eligible to apply for
adjustment of status or for an immigrant visa. If the DOS
has issued a “C”, this classifies the category as “current”
and any foreign national eligible for that category may
apply for adjustment or immigrant visa.
Adjudication of
I-485 Applications Awaiting Immigrant Visa Numbers
Immigrant visa numbers are subject to annual quotas,
a total of 480,000 per year for family-based
immigration and 140,000 per year for
employment-based immigration. These numbers are used
by the U.S. Department of State (DOS) when approving
immigrant visa applications filed at the U.S.
consulates, and by the U.S. Citizenship and
Immigration Services (USCIS) when approving Forms
I-485, Applications to Register Permanent Residency
or to Adjust Status, in the U.S.
Due in large part to the unprecedented events of
summer 2007 that led to almost every
employment-based immigrant visa category becoming
current, the USCIS is currently experiencing a huge
backlog of Form I-485 applications. The USCIS
announced in 2006 that it would “pre-adjudicate” all
cases to the greatest extent possible, including
obtaining all required clearances, regardless of
priority date. However, the USCIS did not reveal how
it would subsequently place cases “on hold” where
the priority dates exceeded the cutoff dates
published in the monthly DOS Visa Bulletin, and how
those cases would become active again once a visa
number did become available.
The DOS has now provided some clarification of the
procedures that are to be completed by the
adjudicating officer once a Form I-485 application
has been “finalized,” meaning that all required
processing and security checks have cleared. The
adjudicating officer submits a “request for visa
authorization” using the Immigrant Visa Allocation
and Management System Web (IVAMSWEB) system. This
system verifies whether the applicant’s priority
date is within the applicable cutoff date for that
month’s Visa Bulletin. The case is then assigned one
of three statuses:
- Authorized: the underlying priority date has been confirmed as current and
the I-485 application should be immediately
approved;
- Duplicate: the A number associated with the
application has already been authorized; or
- Pending Demand: the priority date is not current,
i.e., not within the cutoff date printed in that
month’s bulletin.
Due to the retrogression of priority dates
subsequent to the creation of the vast I-485
backlog, a great number of cases within that backlog
are in Pending Demand status. More will be placed in
that category once all required pre-adjudication
processing has been completed.
According to the DOS, a Pending Demand case will be
automatically authorized for an immigrant visa
number once the underlying priority date has become
current. The entire category is screened twice each
month for visa number availability. If the
priority date for a case is later found to be
current, an immigrant visa number will be authorized
for that case.
Each time the screening process is completed, the
USCIS processing center receives a confirmation
e-mail containing a cover page summarizing all of
the A numbers which have been authorized for the
month, followed by an individual authorization page
for each A number. The individual authorization page
has the same information that would have been
provided had authorization been granted at the time
the case was originally finalized. The USCIS officer
must then take the appropriate steps to have the
green card produced.
While these latest clarifications do not specify how
long the process takes from automatic authorization
to green card production, the USCIS had stated in
its 2006 announcement that inquiries should not be
conducted on I-485 cases for which an immigrant visa
number has become available within the last 90 days.
It should be presumed that this practice tip should
continue to be observed.
Changes to Visa
Processing Requirements for Third Country Nationals
in Mexico
U.S. Consulates in Mexico have recently changed
requirements for visa applications for Third Country
(i.e. non-Mexican) Nationals (TNCs) who are not
residents of Mexico. Without advanced notice,
significant restrictions on a TCN’s ability to apply
for a visa at a U.S. consulate in Mexico have been
implemented.
The following individuals may not apply for visas to
the U.S. at a consulate in Mexico:
- Applicants for B1/2 visas, including renewals
- Applicants who entered the U.S. with a visa issued
in their home country and subsequently changed
status in the U.S. who now seek a visa in the new
category
- Applicants who entered the U.S. in one visa
category and are seeking to re-enter the U.S. in a
different visa category
- Applicants who have been out of status in the U.S.
having violated the terms of their visa or having
overstayed the validity indicated on their I-94
cards
- Applicants who entered the U.S. under the Visa
Waiver Program
- Applicants who obtained their current visa in a
country other than that of their legal residence
- Applicants who were informed when they obtained
the original visa in their home country that they
would be subject to National Security Entry Exit
Registrations (NSEERs) or nationals of North Korea,
Cuba, Syria, Sudan or Iran
The following individuals may apply for visas to the
U.S. at a consulate in Mexico:
- Applicants seeking to renew their visa in any
category except B1/2 (tourist/business), if the
initial visa was issued in the applicant's country
of former residence
- Applicants seeking to renew their visa in any
category except B1/2 (tourist/business), if the
initial visa was issued in the applicant's country
of former residence AND a subsequent visa was issued
by a U.S. consulate in Mexico
Individuals should be aware that certain visa
applicants may be subject to additional
administrative processing. This may take a couple of
weeks delaying the issuance of the visa and the
applicant’s return to the U.S. While the consulates
state that they will work hard to ensure this
processing is completed as soon as possible, they
cannot ensure the issuance of a visa by a particular
date.
These new requirements represent significant changes
to the prior policy relating to visa applications by
TNCs. Prospective visa applicants should carefully
review the revised requirements and check with the
consulate before deciding to travel to Mexico for
visa stamping:
http://mexico.usembassy.gov/eng/edirectory.html.
DOL Update on PERM Processing Times
The U.S. Department of Labor (DOL) is currently
processing unaudited PERM labor certification cases with a
priority (filing) date of March 2008 or earlier, audited
cases with a priority date of July 2007 and earlier and
standard appeal cases with priority dates of December 2006,
while government error appeal cases are currently processed.
If a PERM labor certification application has been pending
for over a month beyond these DOL-reported processing times,
we advise that you contact your immigration service provider
who can submit a written request to follow up with the DOL.
Solutions to PERM System Company Registration Issues
Based on recent
updates from the Department of Labor (DOL), the
following steps are recommended for employers who
experience issues while registering on the PERM
system:
-
Check your spam filters for correspondences from the
DOL. This is the most common reason for a delay in
the registration system.
-
Add to your email contact list and spam filter's
authorized-sender list the following DOL email
addresses: plc.help@dol.gov,
plc.helpint@dol.gov
and
BE-RFI.Atlanta@dol.gov.
-
If you do not recall your username, password or PIN
you should track down these items in your files or
through the link on the PERM website homepage,
rather than trying to re-register. Re-registration
of the same employer will subject them to delays
because of the need to verify the validity of the
new registration.
-
If you are still having problems with company
registration, contact the DOL through the email
address below which has been established to handle
registration issues:
BE-RFI.Atlanta@dol.gov
This e-mail box functions as a help desk for
companies attempting to register on the PERM system.
Federal Contractors Required to Use E-Verify System
Beginning Jan. 15,
2009, federal contractors and subcontractors will be
required to use the U.S. Citizenship and Immigration
Services’ (USCIS) E-Verify system to verify their employees’
eligibility to legally work in the United States. The new
rule implements Executive Order 12989, as amended by
President George W. Bush on June 6, 2008, directing federal
agencies to require that federal contractors agree to
electronically verify the employment eligibility of their
employees.
E-Verify is an Internet-based system operated by the
Department of Homeland Security (DHS) that allows employers
to verify the employment eligibility of their employees,
regardless of citizenship. Based on the information provided
by the employee on his or her Form I-9, E-Verify checks this
information electronically against records contained in DHS
and Social Security Administration (SSA) databases.
Federal contracts awarded and solicitations issued after
Jan. 15, 2009 will include a clause committing government
contractors to use E-Verify. The same clause will also be
required in subcontracts over $3,000 for services or
construction. Contracts exempt from this rule include those
that are for less than $100,000, those that include only
commercially available off-the-shelf items, contracts less
than 120 days in duration, and those contracts where all
work is performed outside the United States.
Companies awarded a contract with the federal government
will be required to enroll in E-Verify within 30 days of the
contract award date. They will also need to begin using the
E-Verify system to confirm that all of their new hires and
their employees directly working on federal contracts are
authorized to legally work in the United States.
The new federal rule is available for viewing on the Federal
Register Web site at:
http://federalregister.gov/OFRUpload/OFRData/2008-26904_PI.pdf.
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