Green Cards

June Visa Bulletin

Retrogression rears its ugly head again in the June Visa Bulletin as the EB1 categories for India and China retrogressed from “current” to Jan 2012. This was predicted in the prior Visa bulletin and noted in this space so no surprise but, still troubling. It is expected that the dates for these 2 categories will return to ‘current’ with the new fiscal year and the October bulletin. Other categories saw small but, steady movement forward.

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

May Visa Bulletin

In huge news, (not covered by CNN, Fox, or anywhere else, fake or otherwise) the EB3 category for India surged forward by one (1) entire day ! The rest of the Visa Bulletin was not much better as it announced that the EB1 category will soon retrogress for India and China and the EB2 category for the “all other world” and the Philippines will retrogress as early as July. Although summer retrogression is a necessary byproduct of the use it or lose it statutory scheme that allocates immigrant visas, it can be disruptive. We remain hopeful that among all of the talk of the need for immigration reform that retrogression relief is a topic being considered. You can find a copy of the May Visa bulletin here.

April Visa Bulletin

The Department of State (DOS) has released the April Visa Bulletin. There were no changes to the dates of filing chart but, since there is no expectation that the USCIS will utilize this chart, it has effectively become moot. The final action date chart showed nice gains for All Other EB3, China EB3 and Philippines EB3 but, India EB2 and EB3 were virtually unmoved. Retrogression relief remains badly needed but, positive legislation seems but, a dream under this Administration.

March Visa Bulletin

During this season where it seems like bad news is the order of the day, the Department of State (DOS) released the March Visa Bulletin and also made some very positive predictions for movement in the coming months. For example, the DOS predicted that we could see a movement of 1 month per month for the India EB2 category, up to the 3 months for the all other EB3 category, and up to 6 months each month for the EB3 Philippines category. They also indicated that EB2 would remain current for all other countries.

By |February 14th, 2017|Green Cards|0 Comments|

February Visa Bulletin

The Department of State (DOS) has recently released the February Visa Bulletin and it contains no surprises. The Dates for Filing chart remained unchanged. The Final Action Date chart showed slow movement forward in all but, India EB2 which stayed at the January date.

By |January 16th, 2017|Green Cards|0 Comments|

January Visa Bulletin-nothing new

The Department of State (DOS) has released the January Visa Bulletin and it contains no surprises. The Dates for Filing chart remains unchanged and the Final Action date chart revealed slow forward movement in almost all categories.

By |December 21st, 2016|Green Cards|0 Comments|

DOL Halts PERM Denials Based upon “Competitive Salary”

The American Immigration Lawyers Association (“AILA”) recently meet with the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) for its quarterly stakeholder meeting. In this meeting, the OFLC informed AILA that it had suspended denying cases on the basis that the recruitment stated that a “competitive salary” was offered or that salary “depends on experience.” This decision was based upon the Board of Alien Labor Certification Appeal’s (“BALCA”) recent findings in Matter of TekServices, which found these denials to be unsupported under the law. The Hammond Law Group hopes that BALCA is able to quickly overturn the denials that were made on this particular issue.

BALCA Reverses Denial based on “Competitive Salary”

Many employers have been frustrated by the DOL’s decision to deny labor certifications where an employer used the language of “competitive salary” or “depends on experience” in portions of their recruitment. The Board of Alien Labor Certification Appeals (“BALCA”) provided a decision in Matter of TEK Services LLC that may assist employers in fighting against these unwarranted denials. In this case, the employer submitted a labor certification on behalf of a “Computer Systems Analyst.” As part of its recruitment effort, the employer stated that the position offered a “competitive salary” in the job order and on the employer’s website. The Certifying Officer (“CO”) denied the case based upon 20 C.F.R. § 656.24(b)(2) and noted that the advertisements placed by the employer do “not adequately apprise U.S. workers of the nature of the wage . . . also can dissuade some U.S. workers from applying for the job opportunity, and mislead others.” In reviewing 20 C.F.R. § 656.24(b)(2), BALCA noted that it provides the basis upon which a labor certification can be granted or denied, including how the CO should consider the employer’s compliance with the attestation that no qualified, available, and willing U.S. worker was applied. However, it does not list any requirement in regards to salary. Consequently, BALCA “rejected the CO’s effort to utilize 20 C.F.R. § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated.” The Hammond Law Group applauds BALCA for reminding the DOL that it cannot make up new standards that have no basis in the federal regulations.

By |November 22nd, 2016|Green Cards|0 Comments|

December Visa Bulletin Brings Bad News

The Department of State (DOS) released the December Visa Bulletin last week. The Dates for Filing chart remained unchanged. The Final Action date chart revealed no forward movement for EB3 all others and small movement for all other categories. The lack of significant forward movement was disappointing but, the really bad news came in the DOS’s projections for coming months. The DOS is expecting the EB1 category for India and China to retrogress. The DOS also expects the EB2 category for the Philippines, Mexico, and all others to retrogress in the summer if not sooner. They also predict continued holds or slow movement for EB3 across the board. Retrogression relief in the form of new legislation is sorely needed but, its prospects are unknown.

By |November 15th, 2016|Green Cards|0 Comments|