August Visa Bulletin

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.

Predicting Immigrant Visas

Predicting Immigrant Visas: Check in with Charlie Oppenheim

EB-5 pilot program

Charlie Oppenheim is infamous in immigration circles for being the man at Department of State for providing predictions on how the immigrant visa categories change month to month. Because of the limited number of immigrant visas for each preference, category, and chargeability, there are long waits for popular classifications, ie India EB-2 and EB-3, China EB-2 and EB-3, and just about every family-based preference. Here are some interesting and useful tidbits from the check in with Mr. Oppenheim.

Charlie believes that the final action dates for the EB-3 China category have the potential to advance five months each month. He believes the EB-2 China category will continue its quick monthly advance.

EB-2 India is one of the most backlogged categories and it only moved one month and a half from February to March. Charlie anticipates movement of 3 months for the final action date in the future.

March 2016 Visa Bulletin

March 2016 Visa Bulletin Released

EB-5 pilot program

The Visa Bulletin for March was just released by the Department of State. EB-2 India moved forward ten weeks after taking a quantum leap in the February 2016 Bulletin. EB-2 China jumped ahead by five months in comparison to last month. EB-3 China, India, and Philippines remain far behind. Many Family Based categories remain far behind currency, but the F2A category is doing very well at June 15, 2015. F2A is for Permanent Residents who file for their spouses and unmarried children under 21 years of age.

Whereas a US Citizen can file for his spouse or unmarried child under 21 years of age and consider them to be an immediate relative (meaning that an immigrant visa is immediately available and consular processing is not required abroad), a US Permanent Resident must go through consular processing abroad and wait for currency date. An approved family-based petition in the F2A category from before June 15, 2015 means that it is available for an immigrant visa. This could be a compelling reason for a Permanent Resident who is eligible for US Citizenship to become a citizen and file for her spouse or unmarried child.

BALCA Overturns Denial

BALCA Overturns Denial: Employer’s Name Different 

 

The Board of Alien Labor Certification Appeals overturned a denial where the employer’s name on the Department of Labor form differed from its name on the State Workforce Agency order. The position that was open was for “Food Service Manager.” The Certifying Officer audited and denied the application for the discrepancy in the employer’s names. The Officer’s basis was that the discrepancy misinformed potential job applicants about the identity of the employer, so that there was not a job opportunity clearly open to any US worker. BALCA reversed the denial because the discrepancy would not confuse potential applicants about the employer’s identity.

BALCA Sides with Employer

BALCA Victory for Employer: Typo Overturned

USDOL_Seal_circa_blue_2015The Department of Labor is usually unforgiving of typographical errors. The smallest thing askew can sink an entire PERM application. BALCA recently decided a case that overturned a typographical error.

The employer’s submitted job requirement was a Bachelor’s Degree and 60 months of experience. In the alternative, it would accept a Master’s Degree and 36 years of experience. That was a typo; the employer meant 3 years (36 months). The certifying officer for the Department of Labor refused certification, finding that the alternative requirement was not substantively similar to the primary experience requirement. On appeal to BALCA, the employer argued that the form was inconsistent. The primary requirement demanded months. The alternative requirement demanded years.

BALCA has held previously that denials based on typographical errors can violate fundamental fairness. Fundamental unfairness occurs when the denial is made because the instructions conflict with the form and the requirements are satisfied in good faith. Inconsistencies are construed against the promulgator of the form, not the applicant. The box states years; the instructions state months. BALCA found that the alternative requirements were substantially equivalent to the primary requirements.