Event Date: Apr 16, 2019
Klasko 2019 Annual Spring Seminar
Klasko Immigration Law Partners, LLP is holding its annual Spring Seminar on Tuesday, April 16, 2019 at the Union League of Philadelphia. Please join us for our fifteenth annual spring seminar addressing current topics of interest for professionals working in employment-based immigration.
In 2017, we saw the foundation laid to build the invisible wall, and while the national discussion has been mostly about the physical wall’s construction at our southern border, in 2018 the invisible wall continued to build. We have seen new policies, proposed changes, and increased scrutiny, which are all designed to discourage and limit legal immigration.
At this annual seminar, your Klasko attorneys will cover a range of topics with an optional session covering immigration fundamentals starting at 8:30 a.m. More in-depth panels and breakouts will cover hot topics and trends including insights into RFE and NOIDs, EB-1 developments, quota upgrades and downgrades, litigation, and much more.
We invite all professionals involved in employment-based immigration to attend.
Please join us for important updates on new regulations, proposed changes to immigration laws and rules, with practical guidance to deal with and overcome these challenges.
Who should attend?
- Corporate and University Counsel
- Hospital Immigration Coordinators
- Human Resources Representatives
- International Chamber of Commerce Members
- International Relocation Specialists
- University DSOs/FSAs
This program is valid for 2.5 PDCs for the SHRM-CP® or SHRM-SCP®.
Thank You to Our
Green Card Quota Backlogs
WHAT IS THE “QUOTA BACKLOG”?
The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.
WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?
Employment-Based First Preference (EB-1)
Employment-Based Second Preference (EB-2)
Employment-Based Third Preference (EB-3)
WHAT DOES EB-1 MEAN?
Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.
WHAT DOES EB-2 MEAN?
Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s Degree PLUS five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected
WHAT DOES EB-3 MEAN?
Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor’s degree or two years of training.
WHAT DOES “OTHER WORKERS” MEAN?
Other workers include positions that require less than two years of experience.
WHAT IS THE “PRIORITY DATE”?
If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.
WHY IS THE PRIORITY DATE IMPORTANT?
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.
CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?
There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.
THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?
The Priority Date is determined by USCIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.
WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “MM/DD/YY” (QUOTA BACKLOG)?
Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e., 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.
WHAT DOES “C” MEAN?
“Current” – this means that there is no quota backlog in this category.
WHAT DOES IT MEAN TO BE “CURRENT”?
If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.
IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02, IS MY PRIORITY DATE CURRENT?
No. In order for the priority date to be current, it must be a date prior to the date published in the Visa Bulletin.
HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?
The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen in order to use all of the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.
THE CUT-OFF DATE CURRENTLY LISTED IS FIVE (OR THREE AND A HALF, OR TWO) YEARS AGO. DOES THIS MEAN THAT IT WILL TAKE FIVE (OR THREE AND A HALF, OR TWO) YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?
No. It all depends on how many visas are used. Please see the answer to the above question.
I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?
You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.
VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OR CITIZENSHIP OR COUNTRY OF BIRTH?
Your country of birth is what determines your country of chargeability.
MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?
Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.
BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT. CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?
No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.
I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?
Yes. Quota backlogs can apply to everyone, regardless of where they are from. While the backlogs have typically affected some countries more than others, note that on the current Visa Bulletin, the backlogs apply to all countries for the EB-3 preference category.
MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?
No. The labor certification process is not affected by quota backlogs.
CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?
Maybe. The visa category of a particular filing cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Sometimes, starting the application again if your position or qualifications has changed can result in the new application having a more favorable preference category; however, that strategy is not possible in every case.
THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?
Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.
MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?
Yes. Even though your case was approved, your dependent’s application is still based on your priority date. USCIS cannot approve the dependent’s application until the priority date is current.
THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES A QUOTA BACKLOG AFFECT ME?
Yes. USCIS can work on the pending application. However, it cannot approve the application unless the priority date is current.
THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT USCIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?
Yes. USCIS will continue to process the I-140 and it can be approved regardless of the quota backlog
CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT USCIS IF I AM SUBJECT TO A QUOTA BACKLOG?
No. Under USCIS guidelines, inquiries may not be made on a case unless the priority date is current.
IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL USCIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?
It may. USCIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence or biometrics appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics.
MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?
No. Even though the only issue may have been the security and background checks, USCIS cannot approve the case until the priority date is current.
DOESN’T USCIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?
No. Immigrant visa numbers are not assigned to a case until right before approval.
CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?
Yes. As long as you have a pending I-485 application at USCIS, you are eligible to apply for and receive EAD and AP documents.
MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E., CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?
No. In order to add a dependent to the pending application, the priority date must be current.
MY BIOMETRICS HAS ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE. WILL USCIS REQUIRE ME TO REDO MY BIOMETRICS?IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
Yes. Biometrics results expire after 15 months. USCIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new biometrics appointment notice.
IF THE CASE IS PENDING AT USCIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
USCIS may ask for updated employment information. However, new photos and medical exams should not be required.
IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?
An I-765 (EAD) application cannot be filed unless an I-485 is pending. Therefore, your spouse will not be eligible for an EAD card and will need to seek employment sponsorship for work authorization.
IF THE I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?
Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remain current.
I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?
The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended.
If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.
IF I AM NOT ABLE TO FILE THE I-485 AND THEN LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?
No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.
DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A U.S. CITIZEN. I HAVE MINOR U.S. CITIZEN CHILDREN AND I HAVE A U.S. CITIZEN SPOUSE, CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?
Unfortunately, a child cannot sponsor you for a permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21 or a U.S. citizen spouse, please contact us to discuss your options.
Litigation to Challenge Agency Delays
Why is the adjudication of some applications delayed for long periods of time after normal processing time?
Although on occasion the reason for government adjudication delay may be an investigation of a particular factual or legal issue or even the government’s mishandling or losing of a file, the very large percentage of delayed application are delayed because of pending security, name check or criminal clearances. Since these clearances are considered a matter of national security, the government will not provide any details regarding the type of clearances that are pending or any likely date for resolution of the clearances.
What is the chance that repetitive inquiries will expedite the adjudication of the application?
What other alternatives exist to expedite the adjudication of the application?
What is a mandamus lawsuit?
A mandamus lawsuit requests a federal court judge to order the government to take action in a case. It does not and cannot request the judge to actually approve the case. If the judge believes that the delay is unreasonable, the judge may order the FBI to complete clearances and/or the USCIS to adjudicate the application within a specified period of time. Although the time specified by the judge may vary, it is often 30 to 90 days.
When do you recommend filing a mandamus case?
There is no correct or incorrect time. Certainly, it would be inadvisable to file before the expiration of normal processing times. Generally, we recommend waiting at least 1 ½ years after filing an adjustment of status application. Since many adjustment of status applications with pending security or name check clearances are approved within eighteen to thirty months after filing, the expense of a mandamus case may be saved by waiting longer than eighteen months. Our experience is that applications that are pending more than 2 ½ years often never get adjudicated or at least may be delayed for several more years. Another factor to be considered is that the longer the application has been pending, the greater the chance that a judge may consider the delay to be unreasonable.
How long does it take to get action after filing a mandamus case in federal court?
The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal.
Under what circumstances will the government expedite the clearances and the adjudication after the filing of the mandamus case?
If the government is convinced that there are “compelling circumstances” that require expediting, the AUSA will make efforts to try to get the case expedited. Examples of this could be medical issues, issues of the person losing eligibility for the benefit if there is a further delay, issues regarding the national interest, etc. In addition, even when there are no “compelling circumstances,” our experience is that many applications get expedited after the filing of the complaint and before the judge has to get involved without any formal notification that the case is being expedited.
Will the government retaliate and deny the case as punishment for the filing of the mandamus case?
What are the chances of success if a mandamus case is filed?
Where does the mandamus case get filed?
The application is filed in federal district court in one of two places: either the federal district court with jurisdiction over the place where the foreign national lives or the federal district court in Washington, D.C. The only exception is on a naturalization case where the permanent resident alien has already been interviewed (called a “336(b) case”), which must be filed in the federal district court with jurisdiction over the place where the permanent resident lives.
Who should be named as a defendant in the mandamus complaint?
All government agencies involved in the adjudication of the application could be named. Normally, this includes USCIS (and often the local district director, the regional center director and the commissioner of USICS in Washington), the Department of Homeland Security and the Attorney General of the United States. It is also often a good idea to include as a defendant the FBI, which has the mandate to process the clearances.
Who represents the government?
The Assistant U.S. Attorney.
What is the government’s likely response to the complaint?
The official response is usually a Motion to Dismiss in which the government attempts to convince the judge that a mandamus case is not appropriate for an adjustment of status or a naturalization application. In some cases, the application is adjudicated before the government files its Motion to Dismiss.
What is the likelihood that the government’s Motion to Dismiss will be granted?
Although some judges agree with the reasons given to dismiss the application, our experience is that most judges agree with the legal argument that we provide in our Reply to the Motion to Dismiss and refuse to dismiss the mandamus case.
What happens if the Motion to Dismiss is granted?
In that event, the case is dismissed; and the mandamus possibility is gone. The foreign national remains in the exact same position he was in before the filing of the mandamus case.
What happens if the Motion to Dismiss is denied?
In most cases, the government voluntarily adjudicates the application before receiving a judge’s order requiring it to do so. If that does not happen, we request the judge to issue such an order requiring the adjudication of the application within a specified period of time.
Can the judge approve the application?
No. The judge can only order the FBI to complete the clearances and order USCIS to adjudicate the application within a specified period of time.
What are the reasons given by the government why the mandamus case should be dismissed?
- cases involving national security are not appropriate for action by the federal court;
- the court should not allow the mandamus applicant to “jump ahead” of others standing in line;
- the government has complete discretion regarding how long to take in adjudicating an application, and its discretion is not subject to court review;
- the government has no duty to adjudicate the application;
- the amount of delay in a particular case is not “unreasonable.”
Can the judge order the government to pay attorneys fees?
If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorneys fees under the Equal Access to Justice Act.
Can an employer, including a university, be a party to the mandamus case?
When the mandamus case seeks action on a petition in which the employer (including a university) is the petitioner, the employer can and must be a plaintiff in the litigation.
Can a mandamus case be filed on behalf of someone outside of the United States?
There are more complicated issues involved when the mandamus case is filed on behalf of someone outside of the United States. It may be possible to file such an action if there is a U.S. petitioning employer and if the defendant is the Department of State in Washington rather than the U.S. Consulate overseas. The court would have to be convinced that it has jurisdiction over the case because of the action or inaction of the Department of State or other government entity in Washington, as opposed to the action or inaction of a U.S. Consulate overseas, since the court would likely hold that it has no jurisdiction over the U.S. Consulate overseas.
Are naturalization cases the same as adjustment of status cases?
Although the issues are a little bit different, a mandamus case can be filed for a long-pending naturalization applicant just as for a long-pending adjustment of status applicant. There are special provisions available if the naturalization applicant was interviewed and if no decision was made on the application for more than 120 days following the interview. In that event, the federal court judge can be requested to not only order USCIS to adjudicate the application but actually to have the federal court judge hold a hearing and decide the naturalization application.
Hiring International Students
Isn’t it illegal to hire international students because they do not have a green card?
No. Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.”
Even if it’s legal to hire international students, won’t it cost a lot of money and involve a lot of paperwork?
No. The only cost to the employer hiring international students is the time and effort to interview and select the best candidate for the job. The international student office handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.
How long can international students work in the United States with their student visas?
F-1 students are eligible for curricular practical training (up to 12 months – such as co-op or internship) before completing their studies, as well as an additional 12 months of optional practical training, either before or following graduation, or a combination of the two. However, if they work full-time for one year or more during curricular practical training, they are not eligible for optional practical training. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.
Don’t international students need work authorization before I can hire them?
No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer in order to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.
What does the work authorization look like?
For optional practical training, F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training, F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.
What if I want to continue to employ international students after their work authorization expires?
With a bit of planning ahead, an employer can hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for workers in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:
- The salary must meet the prevailing wage as defined by the Department of Labor, and
- A bachelor’s degree or higher is a minimum normal requirement for the position.
Doesn’t an employer have to prove that international students are not taking jobs from a qualified American?
No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1 or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).