MARCH 2015
Khaas Baat : A Publication for Indian Americans in Florida

Immigration

Obtaining a Temporary I-551 Stamp Due to Processing Delays for Replacement Green Cards (I-90 Forms)

Dilip Patel

By DILIP PATEL

An individual with a pending I-90 (application to replace green card) who needs evidence of permanent resident status for work, travel, or to obtain a state-issued driver’s license should be able to obtain a temporary I-551 stamp in his or her passport at a local United States Citizenship and Immigration Services (USCIS) office. The stamp, which may be obtained by scheduling an InfoPass appointment, is evidence of permanent resident status and may be valid for up to one year. If there are no InfoPass appointments available within the timeframe required, the USCIS office should also be able to provide the stamp on a walk-in basis, although walk-in procedures vary by office. USCIS will normally issue the I-551 stamp with a validity period of 6 to 12 months; however, if the applicant’s passport expires prior to that time, the stamp will likely reflect the expiration date of the passport. Additionally, if biometrics has not yet been captured for the pending I-90, the office might further limit validity period of the stamp to a period of 30 to 60 days. Because of delays in I-90 processing — USCIS has acknowledged staffing issues — more and more individuals may have to avail themselves of this procedure in order to prove lawful permanent resident status.

Applicants should bring the following items to USCIS when seeking an I-551 stamp:

• Valid passport
• InfoPass appointment notice (if applicable)
• Form I-90 receipt notice
• Proof of residence within the jurisdiction of the USCIS office
• Copy of expired/lost green card, if available
• Copy of date-stamped ASC appointment notice evidencing biometrics capture (if applicable)

USCIS also advises that if the request is based on an emergency walk-in, the emergent need for the stamp must be clearly documented (i.e., documentation of flight itinerary, doctor’s letter or death certificate, along with evidence of the relationship to an ill or deceased relative; company letter if emergency travel is work-related, etc.).

H-1B Professional Visas — Preparation Begins for April Filings

Once again it is H-1B filing season, and, once again USCIS is likely to receive the full allocation of visa petitions in the first week of filing commencing April 1. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2016, for work that commences on Oct. 1, 2016.

Visas for professional specialty workers (H-1Bs) are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules.

While some H-1B petitions can be filed at any time because they are cap exempt, the vast majority of H-1B petitions for new work must be filed in April. Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the early April filing period.

IMPORTANT NOTE: The H-1B petition has to be filed by the employer, not the worker and the Department of Labor takes the position that all costs and fees must be paid by the Employer, not the worker.

New I-129 Form Work Visas Goes Into Effect May 1

USCIS released a new Form I-129 Petition for Nonimmigrant Worker, which is visually and substantively different from the prior edition. The new form, containing an edition date of 10/23/14, includes a number of new attestations that must be made by the preparer. The new form is required for all filings received by USCIS on May 1, 2015 and thereafter. (USCIS had previously announced that the new forms would be required as of 2/23/15 but moved the effective date until after the H-1B filing season.)

Visa Bulletin Update: EB-2 India Advances Significantly in March; China EB-2 and EB-3 Also Advance

In March, the employment-based second preference (EB-2) cut-off date for India advances by 16 months — from Sept. 1, 2005, to Jan. 1, 2007 — and is expected to continue to advance in April and beyond, although not so significantly.

The EB-2 cut off for China also advances significantly, more than five months from March 15, 2010, to Sept. 1, 2010, and is likely to continue for some months. The State Department (DOS) attributes China’s forward movement in part to light demand in the China family categories, along with an effort to provide sufficient time for new filings to be processed before the end of the fiscal year. However, because the employment-based third (EB-3) category cut-off date for China continues to be more than 13 months ahead of EB-2 China, foreign nationals and their employers degrade from EB-2 to EB-3, which in turn causes greater than normal fluctuations in both categories.

Cut-off dates also have advanced in March for the EB-3 Mexico, Philippines, and Worldwide categories. In fact, EB-3 Philippines is now consistent with the Worldwide cut-off date of 06/1/2014. (Unused EB-1 and EB-2 Philippines numbers are dropping down to the EB-3 category, and this has positively impacted the EB-3 category.)

On the family-based side, some Mexico family-based categories have seen rapid forward movement. DOS believes this has been caused by nonresponsiveness by applicants to the National Visa Center’s (NVC) “Agent of Choice” letters. It is unclear if the lack of response is attributable to applicants moving without updating their address with NVC, failing to pursue the case due to ineligibility, failing to respond because the priority date seems far away, or for other factors. A similar phenomenon occurred in the Worldwide categories in 2010 and 2011. At that time, a lack of demand prompted the family-based cut-off dates to advance significantly. However, when applicants finally responded in great numbers, a massive roll-back of the cut-off dates was required.

DOS advises that prompt response to an Agent of Choice letter helps facilitate the scheduling of visa appointments during the month the applicant’s priority date become current, and helps minimize the consequences of retrogression (i.e., an applicant missing out on a visa.)

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com

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