OCTOBER 2012
Khaas Baat : A Publication for Indian Americans in Florida

Immigration

Why Do Visa Numbers Surge Forward and Then Retrogress?

Dilip Patel

By DILIP PATEL

Predicting when one’s priority date will become current and when the wait on the long immigrant visa queue will finally be over can often be pure guess work. With visas suddenly unavailable or unexpectedly within reach, preference-visa applicants and their attorneys have learned to accept this phenomenon as just another part of the immigration system. In a recent interview with the head of the Visa Control and Reporting Division at the State Department’s Visa Office – the office charged with establishing the monthly priority dates for the Visa Bulletin – Charles Oppenheim sheds some light on the process and provides his predictions for the months to come.

In October 2012, when new visas are allocated for fiscal year 2013, the employment-based second category (EB-2) worldwide will become current but, Oppenheim warns, the EB-2 category may retrogress or become unavailable for the rest of the year if USCIS adjudicates a significant number of cases in the summer. EB-2 cut-off dates for China (Mainland born) and India, currently “unavailable,” will only move to August or September 2007 and are not likely to move forward for at least six months due to pent-up demand. Many of these individuals were just two years away from obtaining their green cards in April 2012 when the priority date was May 1, 2010. Now, these foreign nationals can expect at least a five-year wait. Why did this happen? Why do priority dates move so far ahead and then retrogress so drastically?

Apparently, USCIS had approved many I-140 employment-based immigrant visa petitions but had not received a corresponding number of I-485 adjustment of status applications to adjudicate and thus urged DOS to move these priority dates forward. Moreover, USCIS expected that adjudication of EB-1 cases would be at the same rate as last fiscal year, and not more. All of these factors led to the forward movement of the EB-2 priority date. The dates then severely retrogressed when demand caught up with visa availability. Another factor for seesawing EB-2 priority dates was the increase in EB-5 investor immigrant visa cases. Unused EB-5 visas trickle down into the EB-1 category, and unused EB-1 visas fall into EB-2. This year, there was less of the normal trickle-down between categories.

Another issue that clouds prediction of visa demand and visa availability, as explained by Oppenheim, is that neither USCIS nor DOS maintains statistics on upgrades from the EB-3 category to the EB-2 preference category. This can occur, for example, when an applicant applies for an EB-3 visa petition but then advances in his or her career or changes jobs and becomes eligible for an EB-2 visa or marries an EB-2 applicant. In these instances, the individual then has two visa numbers allocated to him. The unused or duplicate visa number (EB-3) is only cancelled when the visa applicant uses the EB-2 visa number during green card issuance. According to Oppenheim, there are between 10,000 and 15,000 duplicate visas numbers as a result of “upgrades” each fiscal year – a wide variance. For 2013, that number is already at 17,000, which underscores the difficulty in predicting upgrades and thus visa availability.

Expanded Use of Supervised Recruitment by DOL in the PERM Process – Be Prepared

In recent months, the Department of Labor (DOL) has indicated that it will expand its use of DOL-supervised recruitment in the permanent labor certification program. While previously certain specific kinds of applications were considered possible targets for supervised recruitment, such as those that did not require an educational requirement and certain financial positions in New York City, more and more applications have been designated for supervised recruitment. Supervised recruitment must be taken very seriously because a pattern or practice of not complying with supervised recruitment can debar an employer, attorney, or agent from filing PERM applications for up to three years. The following guidance is provided from materials prepared by the American Immigration Lawyers Association.

There are two types of supervised recruitment, converted and directed. Converted supervised recruitment occurs when an application that has gone through the normal pre-PERM filing recruitment process is ordered for supervised recruitment, normally following an audit. Directed supervised recruitment requires that all or some of an employer’s labor certification applications are subject to a supervised recruitment process at the outset, and no recruitment is done prior to filing the PERM application. (In addition, any employer who withdraws a PERM application after receiving an order of supervised recruitment will be subject to directed supervised recruitment on any new labor certification applications filed for the same foreign national and job.)

Under converted supervised recruitment, four specific notices are received during the process. The first, which initiates the process, is a “Notification of Supervised Recruitment,” which is sent to the employer or attorney. The notice requires the employer to submit a draft job advertisement within 30 days of the notice date. Extensions for good cause may be requested. Additional information can also be requested.

After the draft advertisement and other requested documentation are sent to DOL, the employer or attorney will receive “Recruitment Instructions.” The recruitment instructions will either approve the initial draft advertisement or require amendments and designate the newspaper where the ad must be placed. Other recruitment measures also may be required. Under supervised recruitment, all resumes are directed to a post office box under the control of the DOL. Resumes received by the DOL are forwarded to the employer with a cover letter entitled, “Notification of Resumes Received.” Because DOL requires that the employer include its name in the recruitment, it is possible that some resumes will be sent directly to the employer and these applicants must also be considered as part of the recruitment results.

Next, DOL will send a notice to the employer entitled “Recruitment Report Instructions.” This notice indicates that the recruitment period has ended, and the employer is given 30 days to submit copies of its recruitment efforts, including a detailed recruitment report that includes the names and addresses of all U.S. applicants who applied as well as the resumes of any U.S. workers who applied directly to the employer.

Supervised recruitment is extremely regimented and cases are highly scrutinized by the DOL. Employers must be particularly diligent to comply with all requests, meet the required deadlines, and maintain flawless documentary records. While all employers are strongly encouraged to keep proof of efforts to contact applicants, such as emails, notes from telephone calls, and/or certified mail, employers who are subject to supervised recruitment must be especially thorough.

USCIS Update on Accommodating Photograph and Fingerprint Capture

In response to guidance from the Office of Civil Rights and Civil Liberties on appropriately accommodating religious beliefs during fingerprinting or photographic identification, USCIS recently updated its policy to accommodate individuals wearing religious headwear or professing religious beliefs during photographs or fingerprint captures.

USCIS will continue to ask individuals to remove headwear that is not religious at the time of photograph capture. However, USCIS will now accommodate an individual who wears headwear as part of their religious practices. Religious headwear can be worn if a reasonable likeness can be obtained from an individual, the full face is visible, and the religious headwear does not cast a shadow on the face. USCIS will ask an individual to remove or adjust portions of religious headwear that covers all or part of the individual’s face. When USCIS requests that an individual adjusts or removes part of all of his or her religious headwear, the official will offer a private room or screened area to capture the photograph, when such space is readily available. The officer will also offer the individual a same-gender photographer. If either of these accommodations is unavailable, the individual will be offered to reschedule the appointment. USCIS will continue to deny requests for waiver for the photograph requirement, regardless of religious objection.

With respect to fingerprinting, USCIS officials and contractors often must physically assist an individual by holding his or her hand to obtain prints. Because some religions limit members of their religion from physically touching a person of the opposite gender, officials will accommodate individuals who request a same-gender fingerprint technician or officer, if possible. If no same-gender technicians or officers are available, the appointment can be rescheduled.

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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