Immigration Law Newsletter, October 2015
Revised Visa System allows backlogged applicants to file Adjustment of Status applications
Beginning with the October 2015 Visa Bulletin, USCIS, in coordination with the U.S. Department of State (DOS), revised the procedures for determining visa availability, as well as the format of the monthly visa bulletins. The revised procedure will allow the DOS to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. The revised procedure will also help ensure that the maximum number of immigrant visas are issued each year and minimize the month-to-month fluctuations in the final action dates published in the Visa Bulletin.
The new Visa Bulletin format includes two charts for each visa preference category (i.e., family-based or employment-based sponsorships):
- Application Final Action Dates (dates when visas may finally be issued); and
- Dates for Filing Applications (earliest dates when applicants may be able to apply).
Applicants can now use the “Dates for Filing Applications” charts to determine when to file their Form I-485 Application to Register Permanent Residence or Adjust Status.
In order to determine whether additional visas may be available, USCIS will compare the number of visas available for the remainder of the fiscal year, together with the following:
- Documentarily qualified visa applicants reports by DOS;
- Pending adjustment of status applications reported by USCIS; and
- Historical drop off rate (ex. denials, withdrawals, and abandonments).
Latest Update on USCIS L-1B Adjudication Policy
The U.S. Citizenship and Immigration Services (USCIS) issued a L-1B Policy Memorandum on August 17, 2015 (effective August 31, 2015), that provides consolidated and authoritative guidance on the L-1B program. This Memorandum seeks to provide flexibility to petitioning employers as to how they can demonstrate that an employee possesses specialized knowledge.
L-1B visas allow multinational companies to transfer certain employees who possess “specialized knowledge” from their foreign operations to their U.S. offices. An employee has specialized knowledge if he/she has “special” or “advanced” knowledge, or both:
- “Special” knowledge of the company's product and its application in international markets; or
- An “advanced” level of knowledge of the processes and procedures of the company.
The Memorandum clarifies the following regarding specialized knowledge:
- Employer must establish that it meets the eligibility requirement for L-1B visa by a “preponderance of evidence” standard rather than a higher standard such as “clear and convincing evidence” or “beyond a reasonable doubt”;
- Specialized knowledge cannot be easily imparted to other individuals;
- Specialized knowledge need not be proprietary or unique to the employer;
- Employer is not required to test the U.S. labor market;
- Specialized knowledge need not be narrowly held within the employer’s organization;
- Specialized knowledge workers need not occupy managerial or similar positions or command higher salaries compared to their peers;
- Eligibility for another nonimmigrant classification is not a bar to eligibility for L-1B classification;
The employer must provide a comparison of the employee's knowledge against that of other workers in the employer’s operations. The employer must demonstrate (1) the need to transfer the employee to the U.S.; (2) the difficulty in transferring or teaching the relevant knowledge to another employee; (3) the duties to be performed by the employee that requires specialized knowledge differ from those employees already employed by the employer; (4) the extent to which the employer would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it were unable to transfer the employee; (5) the extent to which the employee's specialized knowledge would be beneficial to the successful conduct of the employer’s operations; and (6) the total compensation provided to the employee is comparable in dollar value to similarly situated employees of the employer.
Verma LAW FIRM is accepting new L-1B cases for filing pursuant to the latest L-1B Policy Memorandum.
USCIS / DOL Processing Times for H-1B, PERM, L-1A, Citizenship, and Family Based Green Card Cases
The processing times based on recent Approvals / Request for Evidence (RFE) received by our firm from USCIS / DOL are as follows:
H-1B: H-1B cases filed under FY2016 Quota are taking approximately 4 months for approval.
PERM Labor Certifications: PERM applications are being certified in 6-7 months. For audited applications, the DOL is taking 15 months from the initial filing date to certify PERM applications.
L-1A: The California Service Center is taking about 1 month to adjudicate L-1A applications filed under normal processing.
Citizenship Applications: Interviews are being scheduled and applications are being adjudicated within 3 months of filing citizenship applications.
Family Based Green Card Applications: USCIS is taking approximately 4-5 months to adjudicate family-based green card applications for parents and spouses of U.S. Citizens.