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.

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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.

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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.

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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.

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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.

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The Washington Post has reported a recent malfunction, resulting in USCIS sending hundreds of Permanent Resident (Green Cards) to incorrect addresses. This causes all sorts of headaches, involving USPS and USCIS, and unnecessary delays. It is important to make sure that you are updating your address with USCIS (and if applicable, the Immigration Court and Immigration and Customs Enforcement) whenever you move.

USCIS switched over to the ELIS system in 2012 for delivering Green Cards. A report from the Inspector General of the Department of Homeland Security notes that the number of incorrectly sent Green Cards has increased since then.

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It is that time again: The April 2016 Visa Bulletin has been released by the Department of State. You can find all of the final action dates and filing dates posted for Employment- and Family-Based categories.

The expected jump did not come for EB-2 India category. Charlie Oppenheimer had predicted 3 month leaps, but we will keep our eyes peeled for that leap in May.

There was only slight movement in the Family-Based categories.

The reason that there are limits and cutoff dates is because there is a limited allocation of immigrant visas, prescribed by country, category, and preference. Here is the State Department’s explanation of calculations:

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

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Affirmative asylum is an important part of the US immigration system, in which people fleeing persecution in their home country can seek protection in the United States. Asylum is an ancient concept, in which persecuted peoples sought sanctuary in religious places. The number of granted asylum cases is limited and the number of applicants is high. The asylum offices are swamped with the number of cases that they are adjudicating. That is apparent through the release of the most recent backlogs. Here are the current wait times.

The Asylum Division held a meeting for stakeholders today. The blog will share information from the meeting once the minutes are released.

Asylum can also be obtained from an Immigration Judge in immigration court.

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The anti-immigration rhetoric has been vociferous in recent months, largely emanating from presidential candidacies. The usual course of discussion over immigration in recent years has been policymaking and legislation for unauthorized migrants. There are 11-12 million unauthorized migrants in the United States. They either entered the country without authorization or they entered legally but remained past their legal limit. The Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans programs that President Obama initiated through executive order have sought to address immigration issues through the executive branch. The legislative branch has not been able to agree on comprehensive immigration reform.

In contrast to proclamations of immigration bans and restrictions, President Obama spoke at a naturalization ceremony in Washington DC, where people from 25 different countries took the oath to become American citizens. President Obama was there to commemorate the journey that those individuals had to take to become American citizens, on the 224^th anniversary of the Bill of Rights. The president had many remarkable statements about immigration and immigrants:

Just about every nation in the world, to some extent, admits immigrants. But there’s something unique about America. We don’t simply welcome new immigrants, we don’t simply welcome new arrivals — we are born of immigrants. That is who we are. Immigration is our origin story. And for more than two centuries, it’s remained at the core of our national character; it’s our oldest tradition. It’s who we are. It’s part of what makes us exceptional.

The first refugees were the Pilgrims themselves — fleeing religious persecution, crossing the stormy Atlantic to reach a new world where they might live and pray freely. Eight signers of the Declaration of Independence were immigrants. And in those first decades after independence, English, German, and Scottish immigrants came over, huddled on creaky ships, seeking what Thomas Paine called “asylum for the persecuted lovers of civil and religious liberty…

We can never say it often or loudly enough: Immigrants and refugees revitalize and renew America.

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The January Visa Bulletin was released yesterday by the State Department. The January bulletin preserves the action date and filing date framework, instructing potential applicants when they are eligible to file for green cards. For example, for the Employment-Based 2 category of India, the filing date is July 1, 2009 and the action date is February 1, 2008. That means someone who has an approved I-140 in that category before July 1, 2009 is eligible to file, but that someone with a priority date before February 1, 2008 is current. This bifurcated system is based off predictions and is intended to assist applicants and be more efficient with immigrant visas.

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