Relief from Backlogs! (New USCIS Procedures for Retrogressed Applicants)

This article was updated on September 25, 2015
 
Finally, some great news for green card applicants stuck in family and employment-based category backlogs! On September 9, 2015, USCIS announced that it has revised procedures that will allow certain green card applicants to file an I-485 adjustment of status application before his or her priority date is current.

As of October 2015, the Visa Bulletin will include two separate charts in both the family and employment based categories. The first chart, the “Application Final Action Dates” chart will list the priority dates that are current. In order for USCIS to approve an immigrant visa (i.e. green card), the priority date must be “current.” A priority date is current if there is no backlog in the category (shows as “C”) or if the priority date is on or before the date listed in the Visa Bulletin. The second, new chart is the “Dates for Filing Application” chart, which indicates the date when a green card applicant can submit an I-485 adjustment of status application. If the date on the chart is current (“C”) or your priority date is earlier than the date on this chart, you may file your I-485 adjustment of status application with USCIS.

What does this all mean? Many applicants in both the family and employment based categories, have been “stuck” in backlogs, known as retrogression, for many years. Many applicants would have waited years, even decades before being eligible to apply for an I-485 adjustment of status application. This move is especially significant for many Chinese and Indian nationals who are stuck in long, almost depressing backlogs. While this change does not “speed up” the wait to actually obtain the green card, it does provide relief for many applicants and their families who can now obtain “combo” cards which provide unrestricted employment and travel authorization. It also means that applicants may not have to constantly reapply for new visa stamps at U.S. embassies abroad and also allows greater flexibility with AC-21 green card portability.

Qualified applicants and their families will be able to submit an I-485 adjustment of status application when these changes become effective on October 1, 2015. Based on current processing times, we expect USCIS to take approximately 2 to 3 months to process the combo card.

If it all sounds like mumbo jumbo and you are more of a visual person, here’s an example of how to read the charts. Let’s use the following hypothetical. Pretend that Donald is an Indian national, married to the lovely Hillary. Donald filed under the EB-2 category and has a priority date of June 14, 2011. The October 2015 Visa Bulletin’s “Application Final Action Dates” chart (Chart 1) shown below, lists EB-2 India as May 1, 2005. This means that an immigrant visa (i.e. green card) can only be issued (i.e. I-485 adjustment of status application approved) to an Indian national with a priority date on or before May 1, 2005. Donald’s priority date is not yet current. Is Donald out of luck?
 

Application Final Action Dates for Employment-Based Preference Cases (CHART 1)

Employment- Based All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN12 01MAY05 C C
3rd 15AUG15 15OCT11 08MAR04 15AUG15 01JAN07
Other Workers 15AUG15 01JAN06 08MAR04 15AUG15 01JAN07
4th C C C C C
Certain Religious Workers U U U U U
5th
Targeted
Employment
Areas/
Regional Centers
C 08OCT13 C C C
5th
Pilot
Programs
U U U U U

 
Maybe not! Donald and the lovely Hillary may qualify under this new provision and be able to submit their I-485 adjustment of status applications now. This is where the “Dates for Filing Employment-Based Visa Applications” chart (Chart 2) below, must be consulted. To find out if Donald qualifies now, he has to find his visa type in the first column (EB-2 or 2nd) of the Chart 2. He has to stay in the row and move directly to the right to find the corresponding date for India. Chart 2 lists July 1, 2011 for EB-2 India. In order for Donald and Hillary to file their I-485 applications, their priority date must be earlier than July 1, 2011. Since Donald’s priority date is June 14, 2011, he and Hillary, along with any non-U.S. citizen children, may apply for their I-485 adjustment of status applications.
 

Dates for Filing of Employment-Based Visa Applications (CHART 2)

Employment-Based All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15 01JAN15
4th C C C C C
Certain Religious Workers C C C C C
5th Targeted Employment Areas/Regional Centers and Pilot Programs C 01MAY15 C C C

 
But, imagine – what if Donald filed an EB-3 case instead of an EB-2? He and the lovely Hillary, would be out of luck. Chart 2 lists July 1, 2005 for EB-2 India. In this second hypothetical, Donald and Hillary would not be able to file their I-485 adjustment applications just yet. But, Donald would be able to extend his H-1B in three-year increments and Hillary could apply for the H-4 EAD. So, not all is lost!

For more information on retrogression, please read our FAQ.

If you have questions about qualifying for this new procedure, please contact any member of the Loke Walsh Immigration Law team.

 


UPDATE (9/25/2015):

On September 25, the U.S. Department of State (DOS) updated the Visa Bulletin for October 2015, which supersedes the Visa Bulletin for October 2015 that was originally published on Sept. 9, 2015 (when this article was originally written). The adjusted dates of filing are highlighted in the following tables:
 

UPDATED (9/25/2015): Dates for Filing Family-Sponsored Visa Applications

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01MAY09 01MAY09 01MAY09  01APR95
01JUL95 
01SEP05
F2A 01MAR15 01MAR15 01MAR15 01MAR15 01MAR15
F2B 01JUL10 01JUL10 01JUL10 01JAN96 01JAN05
F3 01APR05 01APR05 01APR05  01MAY95
01OCT96 
01AUG95
F4 01FEB04 01FEB04 01FEB04 01MAY98 01JAN93

 

UPDATED (9/25/2015): Dates for Filing of Employment-Based Visa Applications

Employment-Based All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C  01JAN13
01MAY14 
 01JUL09
01JUL11 
C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15  01JAN10
01JAN15 
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15  01JAN10
01JAN15 
4th C C C C C
Certain Religious Workers C C C C C
5th Targeted Employment Areas/Regional Centers and Pilot Programs C 01MAY15 C C C

 


Global Entry Now Available to German Citizens

German citizens may now apply for U.S. Global Entry.

Global Entry is a U.S. Customs and Border Protection (CBP) program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. At select airports, Global Entry members enter the United States through automatic Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification and complete a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Travelers must be pre-approved for the Global Entry program. All applicants undergo a rigorous background check and in-person interview before enrollment. While Global Entry’s goal is to speed travelers through the process, members may still be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in the appropriate enforcement action and termination of the traveler’s membership privileges.

U.S. citizens, U.S. lawful permanent residents and citizens of a few other countries are eligible for Global Entry membership. Global Entry is also available to:

  • Citizens of Germany
  • Citizens of the Netherlands
  • Citizens of Panama
  • Citizens of South Korea
  • Mexican nationals

Canadian citizens and residents are eligible for Global Entry benefits through membership in the NEXUS program.

If you are under the age of 18, you must have your parent or legal guardian’s consent to participate in the program.

You may not be eligible for participation in the Global Entry program if you:

  • Provide false or incomplete information on the application;
  • Have been convicted of any criminal offense or have pending criminal charges or outstanding warrants (to include driving under the influence);
  • Have been found in violation of any customs, immigration or agriculture regulations or laws in any country;
  • Are the subject of an ongoing investigation by any federal, state or local law enforcement agency;
  • Are inadmissible to the United States under immigration regulation, including applicants with approved waivers of inadmissibility or parole documentation; or
  • Cannot satisfy CBP of your low-risk status.

 


Sorry to Our Chinese and Indian Friends on Behalf of the September Visa Bulletin

The latest Visa Bulletin (September 2015) shows significant retrogression under the EB-2 categories for China and India. EB-2 China retrogressed from December 13, 2013 back to January 1, 2006. Meanwhile, EB-2 India didn’t fare much better, retrogressing from October 1, 2008 to January 1, 2006. And EB-3 (all countries except for China, India, and the Philippines) continues to surprise us all, remaining “practically” current with an August 15, 2015 priority date. Apologies again to our Chinese and Indian friends stuck in EB-3 hell, with an EB-3 priority date of December 22, 2004.

Stay tuned…

DHS Announces Enhanced Security Measures for Visa Waiver Program

Today, U.S. Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the implementation of new security enhancements to the visa waiver program. These changes will apply to both new and current members (38 countries) of the program. Some of these new measures include:

  • Required use of e-passports for all Visa Waiver Program travelers coming to the United States,
  • Required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a Visa Waiver country’s borders,
  • Permission for the expanded use of U.S. federal air marshals on international flights from Visa Waiver countries to the United States.

 


CBP Implements “BE-Mobile Air Test”

U.S. Customs and Border Protection (CBP) notified the public that it intends to conduct a test to collect biometric and biographic information from certain foreign travelers who are departing the United States on selected flights from up to ten identified U.S. airports.

INSPECTION PROCESS

The Biometric Exit Mobile Air Test or “BE-Mobile Air Test” will be conducted at the identified airports on randomly pre-selected outbound international flights. Using an wireless hand-held device, CBP will collect biographic data from departing foreign nationals, who are covered by the test, by swiping, or inputting the information from, the foreign national’s travel document. The data collected will be stored in a CBP biographic database. CBP will also capture two (2) fingerprints from the foreign traveler and verify them against the traveler’s biometric identity record. Once the verification and departure inspection is complete, the DHS biometric database and the CBP biometric database will be updated with the verification results in real time.

“The primary mission of any biometric exit program is to provide assurance of traveler identity on departure, giving CBP the opportunity to match the departure with a prior arrival record. This capability enhances the integrity of the immigration system and the ability to accurately detect travelers that have overstayed their lawful period of admission to the United States.”

APPLICABILITY

The BE-Mobile Air Test program does not apply to U.S citizens. It only applies to foreign nationals who are departing the United States on selected international flights at one of the selected airports. Foreign nationals who are in the following status at the time of departure are exempt from the program:

  1. Canadian citizens who under section 101(a)(15)(B) of the Immigration and Nationality Act are not otherwise required to present a visa or have been issued Form I-94 (see § 1.4) or Form 1-95 upon arrival at the United States;
  2. Aliens admitted on A-1, A-2, C-3 (except for attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visas, and certain Taiwan officials who hold E-1 visas and members of their immediate families who hold E-1 visas who are maintaining such status at time of departure, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to this notice;
  3. Children under the age of 14;
  4. Persons over the age of 79;
  5. Classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt; or
  6. An individual alien whom the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines shall be exempt.

DURATION

CBP will collect biographic information and fingerprint data from select non-exempt aliens departing on selected international flights from the identified airports for a period of approximately one year from July 2015 to June 2016.

SELECTED AIRPORTS

The BE-Mobile Air Test will begin at Hartsfield-Jackson Atlanta International Airport and will expand to the following cities this coming fall:

  • Chicago
  • Dallas
  • Houston
  • Los Angeles
  • Miami
  • Newark
  • New York
  • San Francisco
  • Washington-Dulles

June 25: Visa Update – State Department Computer Glitch

The State Department reports that nearly 50 U.S. embassies and consulates, representing nearly three-quarters (73 percent) of the nonimmigrant visa demand worldwide, are now online and issuing visas. Consular posts around the world issued more than 60,000 visas on June 23. U.S. embassies/consulates in China alone issued nearly 25,000 visas.

Collectively, consular posts have issued more than 150,000 non-immigrant visas since June 9. For context, if systems had been operating normally, posts would have issued approximately 450,000 visas during the June 9-23 timeframe. The State Department expect to close this gap rapidly over the next few days.

In the meantime, the State Department continues to bring additional consular posts online until connectivity with all of them is restored. All posts worldwide are now scheduling interviews with applicants, including those who applied after the systems problems began on June 9.

The following are the consular posts that are back up and running as of June 24, 2015.

Amman Hermosillo New Delhi
Ankara Ho Chi Minh City Nuevo Laredo
Beijing Karachi Paris
Bogota Kingston Quito
Brasilia Kyiv Rio de Janeiro
Buenos Aires Lagos San Salvador
Cairo Lima Santo Domingo
Chengdu London Sao Paolo
Chennai Manila Seoul
Ciudad Juarez Merida Shanghai
Djibouti Mexico City Shenyang
Guadalajara Monterrey Tel Aviv
Guangzhou Moscow Tijuana
Guayaquil Mumbai Toronto
Hanoi Nairobi

June 24: Visa Update – State Department Computer Glitch

As of noon on June 24, 2015, the State Department reports that 39 embassies/consulates are back up and running. The list of 39 is as follows:

  1. Paris
  2. Monterrey
  3. Ciudad Juarez
  4. Guangzhou
  5. Beijing
  6. Shanghai
  7. Tijuana
  8. Nuevo Laredo
  9. Mexico City
  10. Guadalajara
  11. Mumbai
  12. New Delhi
  13. Sao Paolo
  14. Chennai
  15. Manila
  16. Bogota
  17. Buenos Aires
  18. Rio de Janeiro
  19. Tel Aviv
  20. Merida
  21. Hermosillo
  22. Karachi
  23. Seoul
  24. Lima
  25. Santo Domingo
  26. Kingston
  27. Shenyang
  28. Chengdu
  29. DPT
  30. Lagos
  31. Guayaquil
  32. London
  33. Brasilia
  34. Moscow
  35. San Salvador
  36. Quito
  37. Ho Chi Minh
  38. Hanoi
  39. Kyiv

UPDATED: State Department Update on Computer Glitch Impacting Visa Issuance

The State Department is in the process of resolving technical problems with its visa systems which have been down since June 9th, 2015. U.S. embassies and consulates around the world have not been able to issue visas since then. The hardware glitch is related to the collection of biometric data which is not processing properly to allow embassies and consulates to perform security checks required to issue visas. The State Department confirms that it is striving to have the system online sometime this week. On June 17, the State Department provided the following information:

  • The Bureau of Consular Affairs is in the process of resolving technical problems with our visa systems.  Biometric data is not yet processing properly to allow embassies and consulates to perform security checks required to issue visas.
  • More than 100 experts across the country are working on this problem 24/7.  We are pursuing a variety of solutions.  This week, nearly 750 temporary or seasonal workers who had been issued visas in the past were issued new visas in Mexico, and we have issued another 1,500 visas globally for urgent and humanitarian travel.  We continue to look for ways to facilitate travel as we work to restore the systems to full functionality. 
  • We deeply regret the inconvenience to travelers and recognize the hardship to those waiting for visas, and in some cases, their family members or employers in the United States. 

The technical glitch has caused disruptions for U.S. employers around the country, who have found themselves without key employees who are stuck abroad while waiting for the return of their passports or the re-scheduling of cancelled appointments. This has also impacted many other L-1, E-3, H-1B, H-1B1, O-1, P-1 , J-1 visa applicants who have had to delay start dates, as well as E investors and entrepreneurs who need to get back to the United States to run their businesses.

The State Department updates can be found here. In the meantime, the U.S. embassy in London provides a useful FAQs for visa and passport applicants – while this resource was provided by the U.S. embassy in London, the information is still useful for other U.S. embassies and consulates around the world.

Loke Walsh Immigration Law will continue to post updates as we receive them.
 


UPDATE:

  • The State Department confirms that it is making progress towards resolving the technical problems experienced since June 9th. Though some progress has been made, biometric data processing has not been fully restored.
  • The State Department team continues to work on this 24/7 to restore the systems to full functionality.
  • As of noon on June 22nd, 2015, twenty two (22) consular posts (i.e. U.S. embassies/consulates) have been reconnected, representing about half of the global nonimmigrant visa volume. Consular posts around the world receive about 50,000 applications per day.

Computer Glitch Halts Visa Issuance at All U.S. Embassies and Consulates Around the World

The Department of State’s Bureau of Consular Affairs is currently experiencing technical problems with its overseas passport and visa systems around the world. This means that all U.S. embassies and consulates are currently unable to print nonimmigrant visas (and immigrant visas) approved after June 8, 2015. In addition, U.S. embassies and consulates are currently unable to process new DS-160 applications submitted on or after June 9, 2015. U.S. embassies are recommending that visa applicants only attend their appointments if the Form DS-160 was submitted prior to June 9, 2015. Anyone who completed the DS-160 on or after June 9, 2015 is advised to only attend the appointment if the situation has been resolved.

USCIS Clarifies Guidance Concerning Suspension of Premium Processing for H-1B Extension Petitions

On May 22, 2015, the U.S. Citizenship and Immigration Services (USCIS) updated its May 19 alert concerning the suspension of premium processing for any H-1B extension petitions. The original guidance created much confusion as to what kinds of cases were subject to the suspension. Of particular concern was whether H-1B change-of-employer petitions would be impacted by the suspension. In the updated guidance, USCIS confirms that premium processing is not available to any cases requesting an extension of stay, including petitions for cap-exempt organizations or change-of-employer applications.

As a recap, starting May 26, 2015, USCIS will temporarily suspend premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.

USCIS will continue to premium process H-1B extension of stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

  • A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
  • USCIS did not act on the case within the 15-calendar-day period.

Premium Processing Remains Available for Certain H-1B Petitions

Premium processing remains available for:

  • Form I-129 H-1B petitions subject to the H-1B cap and cap exempt petitions, as long as the petition is requesting:
    • A change of nonimmigrant status, or
    • Consular notification;
  • Form I-129 H-1B petitions filed on behalf of individuals who already have H-1B nonimmigrant status, as long as the petition is requesting:
    • Consular notification, or
    • An amendment of a previously approved petition that does not include a request for an extension of stay; and
  • All Form I-129 H-1B1 petitions.

Why USCIS is Suspending Premium Processing

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. USCIS anticipates receiving an extremely high volume of Form I-765 applications once the H-4 final rule becomes effective on May 26, 2015, and needs to temporarily suspend premium processing to ensure that it can provide good customer service to both H-1B petitioners and H-4 applicants.

USCIS will monitor its workloads closely and may resume accepting premium processing requests before July 27, 2015, if it determines that it can once again provide customers with the level of service offered with premium processing.

Expedited Processing

Petitioners may request expedited processing for their H-1B extension of stay petition during the temporary suspension of premium processing. USCIS will review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director.