October 2014

Immigration Law Newsletter, October 2014

Priority Dates under Employment-Based Immigration May Become Current By End of 2014

After the elections in November 2014, President Obama may announce an executive order redefining the count for green cards, which would mean that the priority dates for employment-based Green Cards would become current and the last step of the green card application process – I-485 – can be filed for foreign workers with approved I-140s.

The U.S. immigration system puts a limit on the number of immigrant visas (i.e. green card) that can be granted to aliens in a given year. The annual numerical limit for the employment-based preference categories is 140,000. You may not file an I-485 adjustment of status application until your priority date becomes current. Immigrant visas for high-demand countries such as India and China are heavily backlogged. The current practice of the Department of State is to count the principal Beneficiaries and their dependent spouses and children toward the annual limit. The result of this practice is that many Beneficiaries will have to wait years before they can apply for a green card. The President’s executive order will change the practice so that only the principal Beneficiaries will be counted toward the annual limit. As a result, visa backlogs in the employment-based preference categories will be eliminated and the priority dates will become current.

Three months ago, the President promised to take unilateral measures by the end of this summer if Congress fails to act on immigration reform. During a speech in June, he said, "If Congress won't do their job, at least we can do ours." However, President Obama has decided to postpone the executive action on immigration reform until after the midterm elections in November.

We anticipate that the President will take executive action by the end of this year. If the executive action goes into effect by the year’s end, there will likely be a surge in I-485 filings, which will cause significant delays in USCIS’s processing of the I-485 applications. We therefore advise that applicants should have the I-485 application ready well in advance so that they can be filed as soon as the President’s executive action goes into effect. If you need assistance in completing your I-485 application and thereafter preparing the AC21 documentation, please call our office at (408) 436-1010 or email us at info@vermafirm.com and see how we can help you.

Department of Labor Issues Audit on Business Necessity

When drafting the requirements for the job opportunity on Form ETA 9089, employers should keep in mind that the requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation as shown in the O*NET Job Zones. O*NET is the Occupational Information Network developed under the sponsorship of the U.S. Department of Labor. Proof of business necessity is required if the employer’s requirements on Form ETA 9089 exceed the minimum baselines identified by O*Net. To establish a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer business and are essential to perform the job in a reasonable manner. See 20 CFR § 656.17(h).

Recently, Verma LAW FIRM and other immigration attorneys have received audit notices from the Department of Labor, requesting additional evidence of business necessity when the employers’ requirements did not exceed the SVP level assigned to the occupation as shown in the O*Net. We suspect that the Department of Labor perceived the requirements of having experience and/or being proficient in specific tools for the particular job opportunity as not normally required for the occupation. It has been our experience that the best approach to an audit on the issue of business necessity is to show that similar job opportunities posted by other similar employers have the same/similar requirements with respect to the experience and/or being proficient in specific tools. It is also helpful to provide an Expert Opinion letter stating that the employer’s requirements on Form ETA 9089 are normal for the job opportunity.

Procedure for Transferring Pending I-485 From One Preference Category to Another

Hypothetical: the Principal Beneficiary and his Derivative Spouse filed I-485 applications based on the Principal Beneficiary’s approved I-140 under EB-3. Before the I-485s were adjudicated, the priority date retrogressed. The Derivative Spouse, who has been working on EAD, became the beneficiary of an approved I-140 under EB-2 with a priority date that is current. Can the couple transfer their pending I-485s to EB-2 based on the Derivative Spouse’s approved I-140? If so, how?

The couple can transfer their pending I-485s to the Derivative Spouse’s EB-2 by submitting an I-485 transfer request in an SRMT (Service Request Management Tool, a customer database) through the USCIS National Customer Service Center (NCSC) on the USCIS website or at 1-800-375-5283. An SRMT is paperless and the fastest method to make a transfer request, and USCIS will accept an SRMT if the applicant requests the transfer and specifies which approved immigrant petition will be the new basis. I-485 transfer requests submitted in writing to the NCSC take longer to process but are preferred if the applicants wish to include additional correspondence such as substituting a new G-28. Once the NCSC receives the transfer request, it will forward the request to an employment-based I-485 adjudicating officer for review. If the priority date under the newly approved I-140 for the Derivative Spouse is not current, then the applicant will not receive a separate acknowledgement because the transfer cannot be completed until an immigrant visa is available to the applicant. If the priority date is current under the newly approved I-140 for the Derivative Spouse, the Immigration Services Officer will review the I-485s and may request the applicant to specify the preferred basis for adjustment if more than one is present.

If a new I-140 is not yet filed, the Derivative Spouse’s I-140 petitioner should include her A-number (if any) and answer “yes” in Part 4 of I-140, which asks about the beneficiary’s other immigrant petitions or applications. The cover letter accompanying the I-140 should also clearly provide the same information. These steps help USCIS link the I-140 to the applicant’s pending I-485 both electronically and physically.