USCIS has released processing times for the applications they process. Information is not available for cases pending at the Potomac Service Center. Receipt numbers that begin with the letter string YSC are at the Potomac Service Center. These processing times are as of June 30, 2016. Here are some points of note:
- O and P visa processing times have been shortened.
- H-1B processing time has been reduced.
- VAWA applications are at 5 months.
- Employment Cards are still taking over 3 months for the most part.
- U Visa processing is stuck.
- Most EB-1 and EB-2 petitions are around 4 months at the Texas Service Center, but they are taking more time at the Nebraska Service Center. The National Interest Waiver is taking nearly 9 months in Nebraska.
- Fiance and many family-based petitions are taking 5 months for processing.
- An application to remove conditions on permanent residence is taking 10 months for processing.
August Visa Bulletin: USCIS Announces Only Final Action Date Can Be Used
The August Visa Bulletin was released last week, and it contained significant retrogressions (EB-2 worldwide). Other categories have been experiencing retrogression as the fiscal year draws to a close. September 30 is the final date of the fiscal year and October 1 is the inaugural day of the new fiscal year. USCIS announced that the final action priority date cannot be used for filing adjustment of status applications. This is instead of the more friendly filing action priority date, which is usually a few months before the final action priority date. This is for employment-based and family-based adjustment of status applications.
Matter of K-S-Y: From Player to Coach
The AAO decided the Matter of K-S-Y in March of this year, finding in favor of the beneficiary judo coach. The judo coach was able to petition as an Alien of Extraordinary Ability (EB-1), based upon his expertise as a judo athlete. Alien of Extraordinary Ability is a pathway to Permanent Residence and does not tie the individual to a specific employer. The court decided that “area of expertise” may include the field in its entirety and not just one specific occupation within the general field.
The case specifically concerned a judo athlete making the transition from athlete to coach. Many coaches in sports begin as players and later make the transition when they retire as an athlete to a coaching position. The court recognized that athlete to coach is not the only career transition that may occur within an area of expertise, pointing to athlete to broadcaster and musician to instructor as other possibilities.
The EB-1 category is created for a petitioner to apply as an individual of “extraordinary ability.” This is a high standard to meet. The petitioner could not merely rely being an excellent judo athlete in his performance days. He had also taken many steps to establish himself as a coach. There are currently calls for USCIS to adopt this case as a precedential decision.
EB-1 Cut Off Expected for India and China
The Employment-Based 1 Category is usually one of the categories that you can rely on being current, meaning that someone with an approved I-140 in EB-1 can file for adjustment of status or for permanent residence through the consulate abroad. However, that is going to change for the remainder of the Fiscal Year for China and India. Charlie Oppenheimer, the guru of Department of State’s visa availability, forecasts that EB-1 for China and India is going to retrogress back to January 1, 2010 when the visa bulletin is released for August 2016. The EB-1 dates for China and India will reset on October 1, 2016, the first day of Fiscal Year 2017. The reason for retrogression is that there are strict visa quotas for each category and preference that cannot be exceeded each year.
Court Rules USCIS Must Notify Employee and New Employer in Revoked Visa Case
The US Court of Appeals for the Second Circuit rendered a decision that has meaningful impact for thousands of nonimmigrant employees in the United States. The appellate court ruled that US Citizenship and Immigration Services has to provide notice of its intent to revoke an immigrant visa petition to the employee who will be affected by the potential revocation. For someone who is the beneficiary of an employment-based visa petition, this means that individuals must be provided notice. The ruling declared that USCIS must give notice to all actually affected, which can mean the employee who ported to a new job or the new employer.
The basis for the lawsuit was an employee had submitted an application for a Green Card based on an approved visa petition. Although employment-based visas are dependent on employers, employees are allowed to switch jobs. This can wrangle employers, who have made the investment in the employment-based visa for their employees. The employee changed jobs, USCIS decided to revoke the approved visa petition and it sent notice only to the first employer (who had filed for the visa.). The employee and her new employer did not learn about the revocation until it was too late. USCIS denied the Green Card application the employee filed because of the revoked visa petition. The Service also denied the employee’s attempts to reopen the visa revocation.
There is a jurisdictional issue at play. The Second Circuit Court of Appeals sits in New York and covers New York, Connecticut, and Vermont. Its decision is not binding nationwide. The American Immigration Council and American Immigration Lawyers Association are advocating for USCIS to adopt the Second Circuit’s logic and decision.