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1. What are the significant developments in the immigration laws in the past a few months?
- 65,000 regular H-1B numbers were used up on April 2, 2007. This was the first day that USCIS started accepting the H-1B application for the fiscal year of 2008. USCIS used a random selection process for all cap-subject filings received on April 2, 2007 and April 3, 2007. There were additional 20,000 H-1B caps for advanced degree holders if the advanced degrees were obtained in the US. They were used up on April 30, 2007.
- On May 14, 2007, the DOS announced an employment-based immigration Visa Bulletin for June, 2007. This announcement marked big progress for people born in mainland China and India compared to the visa bulletin that was issued on May 14, 2007.
- On May 16, 2007 DOL announced a new 180-days rule for Labor Certification effective from July 16, 2007. Under this rule, an LC will expire after 180 days if no I-140 is filed to proceed with the case. For LCs approved on or after July 16, 2007, the I-140 petition must be filed within 180 days of the LC approval. For LCs approved before July 16, 2007, the beneficiary must file the I-140 petition within 180 days of July 16, 2007.
- On May 16, 2007, DOL decided to terminate the practice of substituting beneficiaries in labor certification cases, effective from July 16, 2007.
- On May 17, 2007, USCIS announced it would terminate Premium Processing Service for Form I-140 petitions that request labor certification substitutions from May 18, 2007.
- On May 29, 2007, USCIS announced the filing fee increases, effective from July 30, 2007. The application fee for I-140 petition has been adjusted from $195 to $475, and the application fee for I-485 has been adjusted from $325 to $1010 (including biometrics fee, EAD, and Advance Parole) for adults and $600 for those under 14.
- On June 13, 2007, the DOS published the Visa Bulletin for July 2007. It announced that employment-based immigration visa numbers were available for all categories and for aliens from all countries, except for unskilled workers.
- On June 22, 2007, USCIS announced new “Direct Filing” instructions. TSC and NSC will accept I-140 cases from July 30, 2007 with new jurisdiction. The USCIS is yet to announce the jurisdiction for TSC and NSC.
- On June 27, 2007, in anticipation of many premium process filings, USCIS announced a temporary suspension of Premium Processing for I-140 filings, effective from July 2 to August 1.
- In June 2007, USCIS unexpectedly speeded up the approval of I-485s. Our firm alone received over 194 I-485 approvals.
- On July 2, 2007, The U.S. Department of State announced that, effective on July 2, 2007, immigrant visa numbers for all employment-based categories had been issued and the USCIS would not accept any new I-485 filings. On July 2, USCIS announced it would reject all Employment Based I-485 petitions received on July 2, and wouldn’t accept new I-485 cases until October 1, 2007. It’s rare to see that visa numbers are unavailable for applicants from all countries in all categories.
From this series of events, we can see that Immigration policies can change over time. The Visa bulletin is also unpredictable. Sometimes, favorable changes could happen, but sometimes, unfavorable changes could suddenly occur that might bar one’s road to obtaining a green card. One solution to this problem is for clients to submit their applications as early as possible.
2. What is the immigration visa number?
The immigrant visa number is the number issued by the US Department of State to beneficiaries of an approved immigration petition who are subject to the annual numerical limitations on worldwide immigration. Under the current visa number allocation system, each country is assigned a limited number of immigrant visas every year. There are 140,000 employment-based immigration visa numbers every year. In addition, an individual country cannot use more than 7% of the total immigration numbers. Therefore, the visa numbers distributed to China or India cannot exceed 9,800. On the other hand, tens of thousands immigrants come from China or India to study or work in the US. Most of them are likely to apply for a green card in the US. Therefore, the demand of visa numbers exceeds the supply. Visa number retrogression is unavoidable for most of the time. An individual’s visa number availability is determined by his/her priority date and the cut-off date in the Visa Bulletin published every month by DOS.
3. What is the priority date?
The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. For an employment-based immigration petition, the priority date is the date of the filing of the labor certification application (PERM) or the date of the filing of the I-140 petition when labor certification is not required in the category (EB-1a, EB-1b EB-1c, and NIW).
4. What is the cut off date?
The Visa Bulletin provides a date for each category of preferences for immigrant applications. If an applicant’s priority date is earlier than the cut-off date, then he/she may apply for adjustment of status.
5. What does it mean that my immigrant visa number is available?
If your priority date is earlier than the cut off date in a given month, it means you can apply for adjustment of status, or your pending I-485 may be approved by USCIS if you filed your I-485 earlier.
6. What categories have a higher priority over others?
Currently, the EB-1 has a higher priority than the EB-2, and the EB-2 has a higher priority than the EB-3.
7. Is the country of citizenship relevant for the visa number availability?
No, only the country of birth is relevant.
8. Is the country of birth relevant?
Yes, visa numbers are determined on the basis of an applicant’s country of birth (or the spouse’s country of birth).
9. In July 2007, the visa numbers are not available. What does that mean?
It means nobody born in any country in the world can apply for an Adjustment of Status on an Employment Based Category in July 2007. However, this event doesn’t influence the I-140 and Labor Certification application. You should submit the I-140 or labor certification as early as possible to obtain an earlier priority date.
10. Are visa numbers are available in August and September, 2007?
As announced by Department of State, there will be no visa numbers for August and September, 2007.
11. When will we know the new visa number will become available?
The Department of State publishes the Visa Bulletin around the 13th of each month for the next month. So, we should know the visa numbers for October 2007 on or around September 13, 2007.
12. May I file I-485 on October 1, 2007?
It depends on your priority date and the visa availability for October. For the EB-1 category, the visa number should be available for aliens born in any country. For EB-2 category, the visa number should be available for all countries other than China and India. We believe there is a chance that, in October 2007, visa numbers will retrogress for EB-2’s issued for people born in China and India. Nevertheless, retrogression is still a progress to the current unavailability of visa numbers for all applicants in all categories.
13. What contributed to the sudden reversal of visa numbers from the announcement of visa numbers available in July on June 13, 2007 and unavailable in July on July 2, 2007?
According to the statement from the US State Department, USCIS unexpectedly speeded up its I-485 approval, which is why visa numbers for 2007 were used up so quickly in June 2007. The State Department had to revise its Visa Bulletin, as all visa numbers for 2007 were used up. We think that the aggressive announcement by the DOS on June 13, 2007 and miscommunications between DOS and USCIS contributed the sudden reversal of the visa number availability.
14. If I filed my I-485 in July 2007, what will happen to my I-485s?
It will be returned by USCIS.
15. I heard that AILF (American Immigration Law Foundation) would file a lawsuit against the DOS and USCIS. What do you think the chance of success?
Lawsuits like this are uncertain by nature. It is hard to know the result at this point.
16. May I join the litigation? How can I be a beneficiary?
Yes, you can. If you filed your I-485 in July 2007 and your application was returned by USCIS, you are eligible to be a “plaintiff” or a beneficiary in the class action in this lawsuit. The lawsuit will be filed as a class action. AILF is now collecting plaintiffs. You may contact your attorney to obtain AILF’s lawsuit questionnaire and more information about it.
17. Is there an expense involved for me to join?
No, it’s free. AILF pays all expenses related to the lawsuit except for your travel expenses to the court if you need to show up. Usually, as a beneficiary of the class, you do not need to show up.
18. I plan to apply for NIW. Should I apply now or wait until October 1, 2007?
You should apply now if your qualifications are fine and your documents are ready. By filing your I-140 petition now, you get an earlier priority date. Moreover, the filing fee will be increased by July 30, 2007.
19. I may be able to apply for an EB-1. Should I apply now or wait until October 1, 2007?
If your documents are ready, you should apply now to get an earlier priority date.
20. I was born in China and may apply EB-1(a) or NIW. As far as the visa number is concerned, should I apply for an EB-1(a) or an NIW?
Visa number availability doesn’t influence an I-140 filing. You can apply to file an I-140 now. Between EB-1(a) and NIW, you should apply for an EB-1(a) if you are eligible since the EB-1 has a higher priority than NIW (EB-2) in terms of visa number availability.
21. If my I-485 was already filed before July 2007 and is currently pending with USCIS, will I be affected by the unavailability of visa number for July?
USCIS will continue to work on pending I-485’s filed before July 2007 (fingerprints scheduled and security checks ordered, etc.). USCIS will also process and approve ancillary applications based on a pending I-485 filed before July 2007, for example, EAD and Advance Parole. In theory, USCIS will not approve the pending I-485s until visa numbers are available in October 1, 2007, as announced by DOS. However, in practice, USCIS may approve some I-485s, as these applications have already occupied visa numbers before July 2007. Our firm has received several I-485 approval notices in July.
22. I was born in South Korea and would like to apply NIW. When may I apply for the I-485?
Most likely, you will be able to apply I-485s on October 1, 2007 when the new immigration visa numbers are released.
23. I was born in China and plan to apply for an EB-1(a). When may I apply for the I-485?
You should be able to apply for the I-485 on October 1, 2007.
24. I heard that your firm suspended your free evaluation and stopped taking new cases on June 25, 2007. Do you provide free evaluation and take new cases now?
Yes, with the suspension of I-485 cases, we provide a free evaluation of your of green card application and also take new cases. Please send your vita and questions to Attorney Jerry Zhang via info@hooyou.com for a free evaluation.
25. From July 30, 2007, the TSC and NSC will take new cases from different states. What does it mean?
This event is a so-called “direct filing.” It means applicants should file their cases directly to either TSC or NSC from July 30, 2007, based on the place of temporary employment or place of residence. In order to assist the public in determining the proper “Direct Filing” location, USCIS will release filing charts that list proper filing locations.
26. I heard from a client of your firm that your firm filed NIW and EB-1 cases in TSC Since March 2007. Is that true?
Yes, we filed all NIW and EB-1 cases in TSC in the past a few months. We expect to continue to do so until July 30, 2007.
27. How much will the filing fees increase for I-140 and I-485’s after July 30, 2007?
The application fee for I-140 is adjusted from $195 to $475, and the application fee for I-485 is adjusted from $325 to $1010. However, the $1010 I-485 filing fee includes the $170 fee for Advance Parole and the $180 fee for EAD. Many applicants apply Advance Parole and/EAD when they file I-485s. Therefore, the real increase of I-485 fee could be only $335 for those who apply I-485, I-131 and I-765 together.
28. When do I need to file my I-140 to avoid the fee increase?
You should file your I-140 before July 30, 2007.
29. In order to avoid the fee increase, do I need to mail out my I-140 on or before July 29, 2007 or does USCIS have to receive it on or before July 29, 2007?
In the AILA annual meeting in June 2007, the USCIS said that it is the date of mailing that controls. You should mail your application before July 30, 2007. Nevertheless, as USCIS frequently changes its recent policies, it’s better to make sure your application is received by USCIS before July 30.
30. If I would like to retain your firm and want to file my application before July 30, when do I have to have my documents ready?
You need to send us your documents before July 22. We will carefully prepare your case and file it to USCIS before July 30, 2007.
31. I would like to apply for an NIW and I have my recommendation letters almost ready, will you be able to file my case before July 30, 2007?
Yes. You need to send us your documents before July 22. We will carefully prepare your case and file it to USCIS before July 30.
32. Do you always use FedEx to send cases to USCIS?
Usually, we use FedEx overnight service to send cases to USCIS. However, in some special situations, we may use USPS overnight service too. For example, on Saturday, June 30, 2007, FedEx stopped accepting overnight deliveries after 5:00pm, so we used the USPS overnight service in order to make sure some additional cases could be received by USCIS on July 2. We go out of our way to ensure that cases are delivered by the cut off date. On Saturday, June 30, 2007, our colleagues Mayra and Linda drove thirty miles and delivered fourteen I-485 cases to the USPS station at the airport and came back to offices until 10:00pm. All these cases were received by USCIS on July 2.
33. What will happen if I concurrently filed an I-140 and an I-485 on July 2, 2007?
According to USCIS’S notice to AILA, it will process the I-140 if it is paid with a separate check. If there is only one check for both I-140 and I-485, USCIS will reject the whole package, and allow the petitioner to re-file the I-140 alone.
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The fifty-five professionals at Zhang & Associates, P.C. are committed to providing high quality work and professional services to our clients.
We provide free evaluations and take new cases. Please send your vita and questions to Attorney Jerry Zhang via info@hooyou.com for a free evaluation.
Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074
Chicago: 6 E. Monroe St. Suite 602, Chicago, IL 60603
New York City: 1350 Broadway, Suite 1710, New York, NY 10018
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com
In the moment of dynamics, our clients can always count on us.
(07/10/2007)
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