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.
USCIS Ombudsman Report for 2016
Government agencies have an Ombudsman who issues reports to Congress and liaises between consumers and the agency to resolve problems. The USCIS Ombudsman released its report for 2016 at the end of June. Important issues for attorneys, individuals, and employers have been visa RFEs and visa delays, Employment Authorization Document application delays, fee waivers, the EB-5 program, and processing times in general. The Ombudsman’s report is over 100 pages. Here are some highlights:
- The Ombudsman noted the excessive number of Employment Authorization Document applications that are taking over 90 days to adjudicate, despite a regulation that states it must take place within 90 days. One seventh of the Ombudsman’s caseload related to delayed EAD applications. The Ombudsman writes:
“Thousands of EAD applicants and their employers continue to be negatively impacted by the agency’s failure to timely adjudicate Form I-765. The proposed regulatory changes will not improve processing times absent allocation of significant resources to meet processing times goals. The Ombudsman continues to highlight EAD issues as a systemic issue, and will monitor and engage the agency as long as this matter remains unresolved.”
- USCIS has a proposal to eliminate the 90 day adjudication requirement and replace that with an automatic 180 day extension of the employment card’s validity upon a timely filing. That proposal has not been implemented. The Ombudsman repeated that it has made multiple efforts and recommendations to rectify EAD issues over the past 8 years.
- H-1B, L-1A, and L-1B RFE rates have decreased from the previous year. This has been monitored for years because of high RFE rates. There are also discrepancies in RFE rates between the Vermont and California Service Centers. Those discrepancies persist.
- O-1 and P-1 visa petitions are receiving high rates of RFEs (49% and 65%).
- There is mixed data as to whether the Service Centers issue RFEs toward the end of the premium processing 15 day period as a delaying tactic.
- Processing times for Naturalization applications are highly variable by USCIS Field Office. Times range from 4 months to 9 months.
- Processing times for Permanent Residence applications are highly variable by USCIS Field Office. Times range from less than 4 months to over 10 months.
Asylum Interview Dates FINALLY Move Up
The Asylum office is badly behind on scheduling interviews for prospective asylees. It usually took 3 months to hold an interview after applying for asylum affirmatively with USCIS. The process has exceeded 2 years and has encroached beyond 2.5 years at times.
One little victory: the interview dates have moved from October 2013 to January 2014 in the Arlington office’s jurisdiction (Pittsburgh is in the Arlington jurisdiction). If you filed an application in January 2014, they are finally scheduling your asylum interview.
This could be Pyrrhic. Future releases of the interview schedule may stall at January 2014, much like the past few months of scheduling have remained on pause. Perhaps this could augur the beginning of the normalization of the scheduling process.
Green Card Lawsuit Dismissed
A federal judge in Seattle has dismissed the Visa Bulletin lawsuit that ensued from the Department of State rescission of filing dates. Back in September 2015, it seemed that the Department of State had made enormous progress in modernizing the Visa Bulletin system, so that individuals (especially in the EB-2 and EB-3 categories and some FB categories) were finally able to file for their Green Cards after years of waiting. Their anticipation lasted about two weeks when the Department suddenly rescinded its October Visa bulletin posting and superseded it with a new October Visa Bulletin.
A class-action lawsuit was filed seeking a temporary injunction, but that was rejected. This most recent rejection occurred because the judge found that the original Visa Bulletin did not confer any rights upon the immigrants. Although the announcement caused a reliance for intending applicants by undergoing medical exams and paying expenses for green card applications, that was not enough. The two week blip on the radar was an inconvenience, but nothing that could create relief for the class. June’s Visa Bulletin contains severe retrogression in many employment and family categories.