EB2-3 Predictions (Rather Calculations) - 2014

[saagar_is_cool]

14K + 4K = 18K that need to be greened. 3K this year will be used in October 2014 to clear pending inventory until May 1, 2009, so this 18K is "after" the 3K allocation. So EB2I would need 21K SOFAD to go into inventory building mode in 2015. I was off by 2K.

I see multiple statements about clearing till May 2009 in Oct 2014. Does this mean that there is slight chance for first time filer in Sep 2014 to be greened directly without EAD/AP ? I ask bcoz I was under assumption that only those ppl that filed in 2012 and are before May 2009 have a chance this year and first time filers have zero chances. Were there previous instances when this clearing got first time filers GC in a couple of months.

[jdoe99]

I see multiple statements about clearing till May 2009 in Oct 2014. Does this mean that there is slight chance for first time filer in Sep 2014 to be greened directly without EAD/AP ? I ask bcoz I was under assumption that only those ppl that filed in 2012 and are before May 2009 have a chance this year and first time filers have zero chances. Were there previous instances when this clearing got first time filers GC in a couple of months.

There were 132 first time filers on Trackitt who got greened last year in Aug and Sep (https://docs.google.com/spreadsheets/d/1-P97YHnA3HWA-Pn-cEvFto26RRGsnn1QZAXzI4CdIfQ/edit?pli=1#gid=1880380020), i.e the first and second month of filing after the dates opened up. As far as if it was only last year, i dont know as this spreadsheet is one that someone on trackitt put together for FY2013 .

[saagar_is_cool]

There were 132 first time filers on Trackitt who got greened last year in Aug and Sep (https://docs.google.com/spreadsheets/d/1-P97YHnA3HWA-Pn-cEvFto26RRGsnn1QZAXzI4CdIfQ/edit?pli=1#gid=1880380020), i.e the first and second month of filing after the dates opened up. As far as if it was only last year, i dont know as this spreadsheet is one that someone on trackitt put together for FY2013 .

Thank you very much for the link, this gives very good perspective from dates point of view. I think from the data listed in there, first time filers in July and August have a chance. I see that first time filers in September have been approved only from November 1. But from what I read on forums, dates will definitely retrogress in Nov bulletin which means that there will be no approvals in November. So I guess my best bet is next year. I was thinking to change jobs in Mar/Apr of next year (6 months of 485 filing) but if I will definitely get greened next year, I might as well wait for 3-5 months and get the GC itself to avoid any trigger of RFE for EVL and AC21 etc.

[vizcard]

Hi Gurus,

My PD is July 2011 in EB2 I.

I'm working for a consulting company and working for its client(no other layers). I'm on 9th year of H1B (3 yr approval based on I-140). My client made a good offer to me and I'm thinking of joining them. However, this client won't start the GC untill I complete 1 year with them and as you know the PERM process is very slow. So it could take about 2 to 2.5 years before I get I-140 approval if I choose my client's job offer. My concerns are

1. If the H4 EAD rule comes, does it allow the spouse to get EAD even though we are not with the previous employer(consulting firm)? I mean based on the current consulting firm's I-140 after joining the client company? I know the rule is not finalized and no one is sure if it will even come or not...still since we can use the previous I-140 for retaining PD/renewing H1, do you think is this something we can count on?


I believe that the h4 EAD rule would still apply. Basically you would be transferring your h1 to the new company and consequently his/her h4. Ideally you want to extend your H1 before changing jobs or soon thereafter before your old employer withdraws the 140. Once you get your 3 yrs, you may still need to recapture time "lost" while on H1-overseas travel, etc. to get another few months. It's doable but you will need to make sure you stick to the timeline.



2. Once I leave the consulting firm, they won't proceed the GC. But is there any hope for EAD before early 2017 for mid 2011 folks?

Thanks...
Have a great weekend.

I'd say there is a very good possibility to get EAD by early 2017 due to an inventory build up in 2016.

[Spectator]

Back in April, I had projected that EB2-I could recieve a total of 21k visas in FY14 and based on that number I arrived at Apr'09 COD by end of FY14.
I'm still sticking to that number, a total of 21k for EB2-I in FY14.
Here is the post:
http://www.qesehmk.org/forums/showthread.php/2474-EB2-3-Predictions-(Rather-Calculations)-2014?p=52317#post52317YT,

As a result of your reply, I revisited my assumptions and calculations. I was already slightly uncomfortable with the figure I had for EB1 use and have revised it downwards. It now fits better the observation that the increase may be an EB1-I phenomenon only and what my "gut feel" was telling me.

As a result, my EB2-I figure is now much more in line with your own. This necessitated a change to another figure in the EB2-I calculation I was not entirely satisfied with (the new figure now seems much more sensible) and I feel more comfortable with the result.

Thanks for your feedback. It was very helpful.

[imdeng]

Any further news of NVC fee notices going on?

[suninphx]

YT,

As a result of your reply, I revisited my assumptions and calculations. I was already slightly uncomfortable with the figure I had for EB1 use and have revised it downwards. It now fits better the observation that the increase may be an EB1-I phenomenon only and what my "gut feel" was telling me.

As a result, my EB2-I figure is now much more in line with your own. This necessitated a change to another figure in the EB2-I calculation I was not entirely satisfied with (the new figure now seems much more sensible) and I feel more comfortable with the result.

Thanks for your feedback. It was very helpful.

Spec - are you going to revisit your front page predictions too? Your very best case scenario you have predicted there is very depressing as my PD is around that :d. Hope you are proven wrong like past years by the 'divine arrangement' we have in place for EB2I. :)

[helooo]

Hello Q,Spec,Vizcard,Gurus,
Received EAD/AP as first time filer @TSC RD July 3rd,2014.Any hope to get GC in October?

[qesehmk]

heloo the dates are not retrogressing in oct so I think for somebody like you (EB2 PD Jun 2008) there is a lot of hope.
Hello Q,Spec,Vizcard,Gurus,
Received EAD/AP as first time filer @TSC RD July 3rd,2014.Any hope to get GC in October?

[Raj0687]

My 2 cents, If there is a possibility of 15K SOFAD visas in FY15, then CO may go for inventory build up. To give away 15K they would need 20K inventory.
Some may debate, well the equation is balanced now, why would CO build inventory? I would say the equation seems neck-to-neck,
I don't think they can afford to waste any spills at this point in time with such a demand, rather accept new applications.

In short, If SOFAD is at least 15K, there will be a build up. FY15 has 70% chances, If not FY16 for sure.

[vizcard]

My 2 cents, If there is a possibility of 15K SOFAD visas in FY15, then CO may go for inventory build up. To give away 15K they would need 20K inventory.
Some may debate, well the equation is balanced now, why would CO build inventory? I would say the equation seems neck-to-neck,
I don't think they can afford to waste any spills at this point in time with such a demand, rather accept new applications.

In short, If SOFAD is at least 15K, there will be a build up. FY15 has 70% chances, If not FY16 for sure.

There is probably close to 20k in "inventory" (EB2 inventory from May 2009-2010 + porting + leftover from this year). All depends on assumptions. The Jan inventory will give us a good picture.

[GChopeful]

Hi Spec, Q and other estimed contributors,

This is my first post, though, I'm a regular reader of your posts.

I'm first time filer with RD 7/25 and PD of 3/31/08.

Should I keep any hope alive for getting GC this year?

[Jagan01]

Hi Spec, Q and other estimed contributors,

This is my first post, though, I'm a regular reader of your posts.

I'm first time filer with RD 7/25 and PD of 3/31/08.

Should I keep any hope alive for getting GC this year?

Do you want to be happy in Nov or sad in Nov ?

1. Dont keep hopes and assume you are not getting it.
Outcomes:
- You get it : You shall be extremely happy
- You dont get it : You shall not be sad

2. Keep hops and think that you get it.
Outcomes:
- You get it : You shall be happy
- You dont get it : You shall be sad

The above was just sarcasm.

I think there shall be 1/4th of the annual quota + a portion of FB spillover that will be given out in Oct.
- If FB spillover is 0 then only 700 visas given out in Oct. There may be around 1.5k July first time filers + carryover (excluding this year porters) 1.5 k. So 700 out of 3000 which is lower chance but still a chance.
- Like last year if we get 10k from FB then approx 6k comes to EB2I. At that time you stand a good chance.

FB spillover is the key number you need to know.

[qesehmk]

welcome to forum - i think it all depends on whether the VB dates will retro in Nov itself. If they do then you are looking at another 9-12 months wait. If they don't then I am fairly confident you should get it by end of Nov.


Hi Spec, Q and other estimed contributors,

This is my first post, though, I'm a regular reader of your posts.

I'm first time filer with RD 7/25 and PD of 3/31/08.

Should I keep any hope alive for getting GC this year?

[GChopeful]

Thanks Jagan for your reply. I'm, anyway, keeping a very low hope so that I can be happy in Nov. :)



Do you want to be happy in Nov or sad in Nov ?

1. Dont keep hopes and assume you are not getting it.
Outcomes:
- You get it : You shall be extremely happy
- You dont get it : You shall not be sad

2. Keep hops and think that you get it.
Outcomes:
- You get it : You shall be happy
- You dont get it : You shall be sad

The above was just sarcasm.

I think there shall be 1/4th of the annual quota + a portion of FB spillover that will be given out in Oct.
- If FB spillover is 0 then only 700 visas given out in Oct. There may be around 1.5k July first time filers + carryover (excluding this year porters) 1.5 k. So 700 out of 3000 which is lower chance but still a chance.
- Like last year if we get 10k from FB then approx 6k comes to EB2I. At that time you stand a good chance.

FB spillover is the key number you need to know.

[GChopeful]

Thanks Q, looks like next year is going to be the year for me.


welcome to forum - i think it all depends on whether the VB dates will retro in Nov itself. If they do then you are looking at another 9-12 months wait. If they don't then I am fairly confident you should get it by end of Nov.

[Spectator]

Spec - are you going to revisit your front page predictions too? Your very best case scenario you have predicted there is very depressing as my PD is around that :d. Hope you are proven wrong like past years by the 'divine arrangement' we have in place for EB2I. :)suninphx,

Sorry for the late reply.

The changes I made only affect FY2014, so I have no changes to my thoughts for FY2015.

Broadly, they are:

EB5 (for certain) will give no Fall Up to EB1.
EB1 (if it semi-repeats FY2014) will give no Fall Down to EB2.
EB4 Fall Up to EB1 could Fall Down to EB2, depending on EB1 demand (it would have to decrease).

SO to EB2-I is going to be heavily dependent on EB2-WW demand and whether there are any spare FB visas.

Currently, I am assuming there will be no extra FB visas.

For EB2-ROW, assuming it takes an average of 6 months from PERM certification to I-485 approval (I think that is fairly reasonable (it fits the pattern seen in FY2014), but you can play with it), then PERM certifications from Q3-Q4 of the previous FY and Q1-Q2 of the current FY will contribute to I-485 approvals in the current FY (although not NIW or Sch A).

For FY2014 I-485 approvals, that number was 12.6k PERM certifications for ROW.

For FY2015 I-485 approvals, there are likely to be about 11k ROW PERM Certifications for Q3-Q4 FY2014, plus any certifications made in Q1-Q2 FY2015. Even if PERM processing times doubled starting from October, there will still be more projected EB2-ROW approvals in FY2015 than in FY2014. The size of EB2-ROW approvals will be dependent on when the PERM slowdown occurs and the extent of that slowdown. My crystal ball is currently broken, so I can't assess that yet :).

Historically, EB2-Mexico will provide FA within EB2. EB2-Philippines may, or may not.

As well as the current Inventory of "old" cases, the July-September period seems to have stimulated a large number of first time filers within the current COD.

I expect CO to use the 3k initial allocation for EB2-I in October, but I don't think that will allow all the remaining "old" cases to be approved (I'm aware not everybody shares this opinion). Any SO (presumably only released towards the end of FY2015) will have to cover :

Approvals from a retrogressed COD from November onwards, plus
"Old" cases left behind, plus
The new applications that will be preadjudicated by that time, plus
Any new porting cases, plus
Any forward movement of the COD beyond 01MAY09.

If EB2-WW is going to provide the bulk of that SO, then it is difficult to see dates moving beyond 2009.

Look, by definition, it is very speculative. You may not agree and it would be hard for me to argue against another scenario. I can only state it as I see it, which I have always tried to do. I think most regular forum members know I tend to err on the pessimistic side and I make no apologies for doing so. I've never asked people to agree with my predictions - I prefer to provide good data that people can use to make their own prediction.

As you say, something always comes along. I have a suspicion (gut feel only) that EB1 approvals are somewhat "massaged" to stay within the initial allocation for EB1. That would allow the full EB4 Fall up to EB1 to further Fall Down to EB2. Maybe there will be significant numbers of FB visas.

Currently, I am fairly confident that there will be no new Inventory build up occurring in FY2015.

The situation will become much clearer when the FY2014 figures are published and the Jan 2015 USCIS Inventory is published.

I wish you the best and sincerely hope the COD does allow your case to be approved in FY2015.

[Kanmani]

I always stood on the optimistic side and always differed from Spec's projection, but this time (strange!), I have a strong opinion that dates might end up closing 2009, which is of course my personal analysis.

I have been watching the perm and I-140 trend from last year, the FY2014 was a slow year for both the perm and I-140 in turn favored and set forth an imaginary blow for spillover rain, that in turn could have taken us to Nov 2009. That didn't happen. When we notice the uscis trend chart, whenever there is a backlog in the I-140, they tend the clear them when it reaches the break point. I am noticing those symptoms from the graph that FY 2015 could be the backlog clearance year.

This is my optimistic projection, but very much wishing at least a 12-14 months move next year. Let us see how the trend goes over the coming months.

[jdoe99]

I expect CO to use the 3k initial allocation for EB2-I in October.......

Spec,
The initial allocation is something people have different opinion about. Some say that a max of 27% can only be allocated per quarter, hence 700ish. However, looking at the number of EB2I's who got approved, I am interpreting that to be a max of 27% per category and not country+category. The optimistic side of me wants to hear that the entire 3K could be allocated :) What are your thoughts on the rule?
Thanks.

[Spectator]

Spec,
The initial allocation is something people have different opinion about. Some say that a max of 27% can only be allocated per quarter, hence 700ish. However, looking at the number of EB2I's who got approved, I am interpreting that to be a max of 27% per category and not country+category. The optimistic side of me wants to hear that the entire 3K could be allocated :) What are your thoughts on the rule?
Thanks.jdoe99,

The law only says that no more than 27% of the total EB allocation for the FY can be allocated in each of the first 3 quarters. It does not mention that they should be prorated across Categories/Countries (or per month for that matter) in the quarter.


INA 201 - WORLDWIDE LEVEL OF IMMIGRATION

(a) In general. - Exclusive of aliens described in subsection (b), aliens born in a foreign state or dependent area who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence are limited to-

(2) employment-based immigrants described in section 203(b) (or who are admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent under section 203(b) ), in a number not to exceed in any fiscal year the number specified in subsection (d) for that year, and not to exceed in any of the first 3 quarters of any fiscal year 27 percent of the worldwide level under such subsection for all of such fiscal year; and

For an EB allocation of 140,000 that at is 37,800 visas available for the first quarter.

At the beginning of FY2014, some 6-7k approvals were made for EB2-I in the first quarter.

[jdoe99]

Thanks for your clear explanation as always

[iatiam]

I always stood on the optimistic side and always differed from Spec's projection, but this time (strange!), I have a strong opinion that dates might end up closing 2009, which is of course my personal analysis.

I have been watching the perm and I-140 trend from last year, the FY2014 was a slow year for both the perm and I-140 in turn favored and set forth an imaginary blow for spillover rain, that in turn could have taken us to Nov 2009. That didn't happen. When we notice the uscis trend chart, whenever there is a backlog in the I-140, they tend the clear them when it reaches the break point. I am noticing those symptoms from the graph that FY 2015 could be the backlog clearance year.

This is my optimistic projection, but very much wishing at least a 12-14 months move next year. Let us see how the trend goes over the coming months.

Spec, Kanmani,

If the inventory is not buildup in FY15, then how soon should the dates be moved so that there is no wastage of visas in CY15? Also how far will the dates move in the inventory building mode? I know this one is a hard question, so can we at least put a ballpark number equal to the inventory buildup in 2011.

Iatiam

[Kanmani]

Iatiam,

DoS is comfortable moving dates in the last quarter, I assume they do so next year too.

As far as the inventory building, there is a speculation that they tend to make a big move in the election year and this was observed by the people in the pursuit of GC for a longer period ( mostly Eb3). They are suggesting there is a pattern going on during the election for years.

I do think there will be a date move in 2015 during FY2016.

[4WatItsWorth]

suninphx,

Sorry for the late reply.

The changes I made only affect FY2014, so I have no changes to my thoughts for FY2015.

Broadly, they are:

EB5 (for certain) will give no Fall Up to EB1.
EB1 (if it semi-repeats FY2014) will give no Fall Down to EB2.
EB4 Fall Up to EB1 could Fall Down to EB2, depending on EB1 demand (it would have to decrease).

SO to EB2-I is going to be heavily dependent on EB2-WW demand and whether there are any spare FB visas.

Currently, I am assuming there will be no extra FB visas.

For EB2-ROW, assuming it takes an average of 6 months from PERM certification to I-485 approval (I think that is fairly reasonable (it fits the pattern seen in FY2014), but you can play with it), then PERM certifications from Q3-Q4 of the previous FY and Q1-Q2 of the current FY will contribute to I-485 approvals in the current FY (although not NIW or Sch A).

For FY2014 I-485 approvals, that number was 12.6k PERM certifications for ROW.

For FY2015 I-485 approvals, there are likely to be about 11k ROW PERM Certifications for Q3-Q4 FY2014, plus any certifications made in Q1-Q2 FY2015. Even if PERM processing times doubled starting from October, there will still be more projected EB2-ROW approvals in FY2015 than in FY2014. The size of EB2-ROW approvals will be dependent on when the PERM slowdown occurs and the extent of that slowdown. My crystal ball is currently broken, so I can't assess that yet :).

Historically, EB2-Mexico will provide FA within EB2. EB2-Philippines may, or may not.

As well as the current Inventory of "old" cases, the July-September period seems to have stimulated a large number of first time filers within the current COD.

I expect CO to use the 3k initial allocation for EB2-I in October, but I don't think that will allow all the remaining "old" cases to be approved (I'm aware not everybody shares this opinion). Any SO (presumably only released towards the end of FY2015) will have to cover :

Approvals from a retrogressed COD from November onwards, plus
"Old" cases left behind, plus
The new applications that will be preadjudicated by that time, plus
Any new porting cases, plus
Any forward movement of the COD beyond 01MAY09.

If EB2-WW is going to provide the bulk of that SO, then it is difficult to see dates moving beyond 2009.

Look, by definition, it is very speculative. You may not agree and it would be hard for me to argue against another scenario. I can only state it as I see it, which I have always tried to do. I think most regular forum members know I tend to err on the pessimistic side and I make no apologies for doing so. I've never asked people to agree with my predictions - I prefer to provide good data that people can use to make their own prediction.

As you say, something always comes along. I have a suspicion (gut feel only) that EB1 approvals are somewhat "massaged" to stay within the initial allocation for EB1. That would allow the full EB4 Fall up to EB1 to further Fall Down to EB2. Maybe there will be significant numbers of FB visas.

Currently, I am fairly confident that there will be no new Inventory build up occurring in FY2015.

The situation will become much clearer when the FY2014 figures are published and the Jan 2015 USCIS Inventory is published.

I wish you the best and sincerely hope the COD does allow your case to be approved in FY2015.
Spec, wonderful summary! Many thanks for putting that together. What are the chances that dates will at least move to 1Nov2009 -- upto when the RFEs were issued last FY? And when do you think that may happen -- July (or Q4) 2015 or can it happen sooner?

[ambrosia]

Do you want to be happy in Nov or sad in Nov ?

1. Dont keep hopes and assume you are not getting it.
Outcomes:
- You get it : You shall be extremely happy
- You dont get it : You shall not be sad

2. Keep hops and think that you get it.
Outcomes:
- You get it : You shall be happy
- You dont get it : You shall be sad

The above was just sarcasm.

I think there shall be 1/4th of the annual quota + a portion of FB spillover that will be given out in Oct.
- If FB spillover is 0 then only 700 visas given out in Oct. There may be around 1.5k July first time filers + carryover (excluding this year porters) 1.5 k. So 700 out of 3000 which is lower chance but still a chance.
- Like last year if we get 10k from FB then approx 6k comes to EB2I. At that time you stand a good chance.

FB spillover is the key number you need to know.

Great comment,

I too have been lurking around this forum reading all the great posts by gurus..

I am a first time filer on 7/28 (NSC) with a PD of Dec 2007 and would like to know if there is any chance of me getting greened this year?

Though i tend to stay put on the first scenario you mentioned, at times I tend to jump to the second.

Thanks and keep up all the great work you guys do....Some serious discussions I see on this forum

[fedexfan]

Gurus, Can you please advice on my situation. My PD is EB2I Nov 25, 2008 TSC. I filed 485 in Jan 2012 and have an EAD/AP combo card.

I got an RFE for medicals and employment verification on June 17, 2014. I sent out a reply and received acknowledgement of receipt on July 7, 2014.

I raised a SR on Sept 6th, and got a reply last week saying - "A visa is currently available for your application and your case has been requested for review. You should receive a decision or notice of further action within 90 days". I contacted my district congressman few days back and called the representative back again today to track followup. To my horror, the congressional representative tells me today that my application is stuck in 'security check'. I am confused now and unsure of what the next steps I should take are. Is there anything I can do to expedite the security check process? Isn't it nonsensical that I am on a security check hold more than 2 years after filing the application. Is there anything else I can do apart from waiting? Any suggestions..Thanks everybody for being the voice of reason during this frustrating process.

[Seeking_GC_Since_Jun_2008]

With PD June 2008 TSC I had the same hold up...Security Check.

But it got cleared in 2 weeks time...hang in there should be cleared soon! Good Luck!


Gurus, Can you please advice on my situation. My PD is EB2I Nov 25, 2008 TSC. I filed 485 in Jan 2012 and have an EAD/AP combo card.

I got an RFE for medicals and employment verification on June 17, 2014. I sent out a reply and received acknowledgement of receipt on July 7, 2014.

I raised a SR on Sept 6th, and got a reply last week saying - "A visa is currently available for your application and your case has been requested for review. You should receive a decision or notice of further action within 90 days". I contacted my district congressman few days back and called the representative back again today to track followup. To my horror, the congressional representative tells me today that my application is stuck in 'security check'. I am confused now and unsure of what the next steps I should take are. Is there anything I can do to expedite the security check process? Isn't it nonsensical that I am on a security check hold more than 2 years after filing the application. Is there anything else I can do apart from waiting? Any suggestions..Thanks everybody for being the voice of reason during this frustrating process.

[bluelabel]

Will this delay help EB2I to get more spillover in FY2015?

http://www.immigration-law.com/

DOL Predicts Delays of PERM Applications Ahead

As we reported earlier, OFLC was processing clean-cut PERM cases which they had received in March 2014 and audit cases which they had received in March 2013 as of September 2, 2014. Therefore, the clean-cut cases take about minimum of five (5) months (150 days) and audit cases take about minimum of 16 months (480 days). Since the DOL five-year strategic plan for FY 2014 was 150-225 days for clean-cut cases and 305-450 days for audit cases, the clean-cut cases are currently right on the mark and have the privilege of being processed within planned period, while audit cases are being processed somewhat behind of the planned timeframe. However, the employers should learn to live with the delays in PERM processing in FY 2015, as we reported earlier this month. According to their long term strategy, considering the budgetary restraints, the processing times for clean-cut cases will be stretched out to 250-350 days (minimum of seven months or longer), while the audit case processing times will be further stretched out to 475-600 (minimum of 16 months or longer) in FY 2015. We are at the door step of the new fiscal year of 2015 (October 1, 2015). Considering the fact that even in FY 2014, it has been taking for more than 15 months for the audit cases, it is likely that the audit cases will encounter further delays beyond 15 or 16 months which is the current processing timeline. Readers should remember that DOL PERM programs are totalled managed by the tax payers money and not fees collected from the employers. To resolve this issue, the DOL has planned for the past several years to convert the PERM program financial resources from current budget resources to the fee-based program just like the USCIS. Unfortunately, this has never materialized for the unknown reasons. From the perspectives of the employers, such change may be welcome since it can bring the changes in processing times.
What about the situation of PERM appeals to BALCA? We have just learned that the BALCA appeals are three-year behind. You have read it right! THREE YEARS.
Since the current employment-based immigration quota system is so choked up and visa numbers are heavily regressed, one may think that the delay of PERM application processing is no big deal in that most of these applicants are in H-1B visa status and they can extend their nonimmigrant status under the AC 21 Act, even indefinitely, pending the proceeding. But it is not that simple. The longer it takes, the riskier their green card chances are because of potential changes with the employers' businesses or other factors, not to mention a sort of 'hostage' state of their immigration journey with no flexibility for their mobility and life. No wonder why the foreign workers have been so desperate to see the reform of current immigration system.

[Spectator]

bluelabel,

It would help somewhat by reducing the higher number of approvals that EB2-WW would otherwise have had in FY2015.
It's partly discussed in this post.

It might be beneficial to EB3-I, since it would limit the number of EB3-WW cases that could file I-485 and be approved, even if they became Current.

[suninphx]

[QUOTE]
Sorry for the late reply.

Spec- thanks for taking out time for such a detailed reply.


The changes I made only affect FY2014, so I have no changes to my thoughts for FY2015.
In your previous post you had mentioned about EB1 phenomenon was mainly EB1-I phenomenon(in 2014), which made me think that there was chance to revise down non EB1-I numbers. Hence the question.May be I misunderstood.


SO to EB2-I is going to be heavily dependent on EB2-WW demand and whether there are any spare FB visas.

Currently, I am assuming there will be no extra FB visas.

For EB2-ROW, assuming it takes an average of 6 months from PERM certification to I-485 approval (I think that is fairly reasonable (it fits the pattern seen in FY2014), but you can play with it), then PERM certifications from Q3-Q4 of the previous FY and Q1-Q2 of the current FY will contribute to I-485 approvals in the current FY (although not NIW or Sch A).

For FY2014 I-485 approvals, that number was 12.6k PERM certifications for ROW.

For FY2015 I-485 approvals, there are likely to be about 11k ROW PERM Certifications for Q3-Q4 FY2014, plus any certifications made in Q1-Q2 FY2015. Even if PERM processing times doubled starting from October, there will still be more projected EB2-ROW approvals in FY2015 than in FY2014. The size of EB2-ROW approvals will be dependent on when the PERM slowdown occurs and the extent of that slowdown. My crystal ball is currently broken, so I can't assess that yet :).

Historically, EB2-Mexico will provide FA within EB2. EB2-Philippines may, or may not.

As well as the current Inventory of "old" cases, the July-September period seems to have stimulated a large number of first time filers within the current COD.

I expect CO to use the 3k initial allocation for EB2-I in October, but I don't think that will allow all the remaining "old" cases to be approved (I'm aware not everybody shares this opinion). Any SO (presumably only released towards the end of FY2015) will have to cover :

Approvals from a retrogressed COD from November onwards, plus
"Old" cases left behind, plus
The new applications that will be preadjudicated by that time, plus
Any new porting cases, plus
Any forward movement of the COD beyond 01MAY09.

If EB2-WW is going to provide the bulk of that SO, then it is difficult to see dates moving beyond 2009.

I am not disagreeing in any of this in THEORY but practically I believe that there is a scope for things to play out much differently. Just one example - I am not sure what's percentage of EB-I PERM application you have assumed for FY2015. EB-I PERM application percentage is increasing significantly year on year. So who knows, EB-ROW PERM application may drop significantly ( you seem to have assumed it to be constant) providing much more SO than you anticipate.


Look, by definition, it is very speculative. You may not agree and it would be hard for me to argue against another scenario. I can only state it as I see it, which I have always tried to do. I think most regular forum members know I tend to err on the pessimistic side and I make no apologies for doing so. I've never asked people to agree with my predictions - I prefer to provide good data that people can use to make their own prediction.
Fully agree. Personally, I have always been interested only in the top class information and data you provide and much less interested in your predictions. They are too negative for my liking and have never been near where actual dates move. (Partly because they are extremely conservative and may be agencies involved do not do as much data analysis as you do- Thankfully :))
Normally I would not have cared about your prediction this FY too but that came to close to my PD ( and as most optimistic scenario)....so may be my frustration is showing up :)


As you say, something always comes along. I have a suspicion (gut feel only) that EB1 approvals are somewhat "massaged" to stay within the initial allocation for EB1. That would allow the full EB4 Fall up to EB1 to further Fall Down to EB2. Maybe there will be significant numbers of FB visas.

You like it or not Spec, but that's how things have played out in past. My PD being in Q4 2009, naturally I wish it repeats this year too. Whether it really happens - can't really tell as crystal ball is broken here too :)




I wish you the best and sincerely hope the COD does allow your case to be approved in FY2015.

Thanks Spec. And thanks again for all your analysis, comments and data. Looking forward to hear more as year progresses.

[suninphx]

I always stood on the optimistic side and always differed from Spec's projection, but this time (strange!), I have a strong opinion that dates might end up closing 2009, which is of course my personal analysis.

I have been watching the perm and I-140 trend from last year, the FY2014 was a slow year for both the perm and I-140 in turn favored and set forth an imaginary blow for spillover rain, that in turn could have taken us to Nov 2009. That didn't happen. When we notice the uscis trend chart, whenever there is a backlog in the I-140, they tend the clear them when it reaches the break point. I am noticing those symptoms from the graph that FY 2015 could be the backlog clearance year.

This is my optimistic projection, but very much wishing at least a 12-14 months move next year. Let us see how the trend goes over the coming months.

Kanmani - can you provide more data? From memory , bulk I-140 approvals and PERM approvals happened only in one of the years in recent past and has not been repeated.

[iatiam]

I can sum up my thought like this: 485 denial due to factors that deem you ineligible for immigration is a catastrophic enough event that even your H1B status is immaterial at that point. DUI, domestic abuse or even minor criminal history can bar you from employment, get you fired and generally out you in a hole from which climbing out is very tough.

What are the other possible denial reasons? They all fall in 2 categories: a) stupid clerical errors and b) AC-21 blunders. You need to ensure you are not doing something really stupid to get a denial. Really, that's the only case you need the H1B for. This kind of denial is correctable and your case will be reopened, but you need to be in status meanwhile, and as spec explained, mostly all the time on EAD will immediately put you out of status.

Also, make your application AC-21 proof. This will require research. Find the labor code on original PERM and make a case that the new job would have been advertized with same/similar labor code. I also ensured that the new job requirements were "EB2 worthy".

Lastly, although minor, my previous employer did not revoke my I140 at all. Small time and small minded employers will do this to you, and who knows how the USCIS will react to it?

If you are covered on all fronts, it is safe to take a job on EAD. if you have any doubts, stay on your H1B.

So that takes us to the question of AC21. What if I did not file for AC21 or filed wrong AC21 and 485 got rejected? Is it possible to file Motion to re-open the case and get the GC.

Iatiam

[Kanmani]

Kanmani - can you provide more data? From memory , bulk I-140 approvals and PERM approvals happened only in one of the years in recent past and has not been repeated.

Sun, Below is the I-140 pending graph of USCIS data, from which we can see there have been a significant backlog (marked in yellow) in the I-140 processing due to slow processing. I think they can't keep on going like this and at some point they tend to clear them.

693

[gcq]

When coming to AC21, this is what I did.
My situation: my former employer may cancel my I-140. (They haven't done so far after leaving them for 2 years)
Anticipating a cancellation of I-140 I decided to do AC21. Before accepting the new job, made sure the job is AC21 compliant. Most of job change situations we undergo are AC21 compliant. Like changing from Systems Analyst to Software Engineer. To cover my base confidently I hired a lawyer who would do my AC21 as well as take care of my I-485 in case it has an RFE. I went with Ron Gotcher as he had a flat price package at that time that would take care of both of these including my spouse's I-485 for a flat fee.

Advantage of having a lawyer:
1. He will take care of the RFE and notify me even when I am out of the country.
2. Getting an RFE response or AC21 documentation from reputed lawyers will have different impact on immigration officer than getting from applicant himself.

Why spent money on lawyer:
My life here is dependent on that I-485. So I want the best protection I can get for it. I don't mind spending some money for that peace of mind.

[Kanmani]

If 485 denial is due to out of status for more than 180 days or criminal history or DUI or any other valid reason, why would even H1B will be approved. The existing H1-B may be revoked when USCIS realize that applicant was out of status. May be my understanding is not correct, Gurus can answer better.

bluelabel,

DUI may not impose a denial decision in my opinion. H1B can only be revoked by USCIS under fraud findings, even in a out of status scenario, they approve the petition without extending the status by not attaching the I-94 at the bottom of the notice.

[Kanmani]

Sportsfan,

While I am drafting my post, gcq has posted his, needless to say I agree with him.

In a scenario of I-140 revocation on retaliation, some adjudicators are in a urge to send a NOID rather asking for another EVL. For a person like me this news would bring a nervous breakdown, sleepless nights and things may go worse.

[eb22010]

Hello Gurus.

My PD is Feb 2010. I missed the boat last time to file 485. Can someone help me when do you think I will get EAD.

I am looking for job change.

Any reply is greatly appreciated.

Thanks

[Kanmani]

Hello Gurus.

My PD is Feb 2010. I missed the boat last time to file 485. Can someone help me when do you think I will get EAD.

I am looking for job change.

Any reply is greatly appreciated.

Thanks

Eb22010,

It is too early to predict at this time, I guess there is a 50% chance of getting your EAD next year this time i.e., around Oct 2015. If you are in the process of changing jobs, considering your situation to restart the GC all over again, this is for your information that the perm processing times have been increased and straight forward approvals are long delayed up to an year.

Take decisions according to your gut feeling and give importance to what is more worth in the pursuit of GC. All the best!

[iatiam]

First of all, when you change the job, it is not necessary to inform the USCIS. In fact, I would go a step further and say "don't do it". Especially so if you are with the TSC. You will get an EVL RFE anyway from the TSC. The time to "do AC21" is then.

Secondly, I am not sure if I understand what you mean by "wrong AC21". There are 2 things you send the USCIS when you inform them of a job change. The first is a new employment letter and the second is a cover letter that explains it. I do not understand how you can do this wrongly. When I said AC21 blunder, it meant you took a job you shouldn't have taken (i.e. something like you went on to become an investment banker from a software developer) under the AC21 stipulation. What you are describing is a "clerical error" perhaps, i.e. your lawyer sent a wrong EVL completely or mixed something else up.

At this point, unless I know that the lawyer is very competent, I would not hire one. You can do all of the paperwork yourself, do it correctly, and also save a lot of money and stress. You do not keep guessing if the lawyer did everything right. You are in charge and you should not make obvious blunders.

I do not know honestly the implications of 485 rejections and what options are available. Honestly speaking, I have not considered this as a possibility in this journey. Basically, if the 485 is rejected, I am screwed badly and planning ahead for it is not going to save much. On the other hand, by taking this possibility out of my mind completely, I can live stress free and be productive and energetic as always. It works for me. If you are a planner, think about planning for the unthinkable.

When I said "wrong AC21", this is what I meant. I work in the non-IT field and to make things simple let us use some symbology.

The whole premise of AC21 is "same or similar" jobs. Suppose I am some one with a masters degree in boat making. My first job was with a company which makes boats. They filed for 485, I quit after 180 days and my new job is to make a hovercraft. USCIS might argue that hovercraft making is not the same as boat making. If so, which stage does this argument pop-up? While filing AC21 or during 485 adjudication stage. My interest is in understanding how the AC21 process works. My lawyer said that there is no fixed format for AC21. So is it a document that we send to USCIS which they look at and shove it by the side until it is time to adjucate the application or is it some thing that they evaluate carefully.

BTW the boat making example is made up, but the scenario actually happened for a lot of my friends during the PERM stage. USCIS audited all the applications with the boat versus hovercraft argument. I have never seen such an issue with AC21, though.

On the issue of rejection, I am not that pessimistic. Having lived here for more than a decade and having broken just a few rules (except speed limits of course), I am fairly confident that things will turn out to be good.

Iatiam

[Kanmani]

Iatiam,

The interpretations of AC21 regulations look only for the job duties to be same or similar. Matching your example, one can be a fitter, assembler, painter in both the boat/hovercraft making industries. What is the end product doesn't matter but the alien's expertise matters.

[gcq]

Spec, Viz, Sports, gcq, bluelabel,

Thanks a lot for your responses. H1B should be the route to be taken.

The worrisome part is that "out-of-status" days are counted since the time you start using your EAD.

One more question. How and when do you actually switch from H1 to EAD ? Lets assume that H1 is expiring in Jan 2015. Then would the switch the EAD happen automatically on Jan 2015 or do I have to go to my employer and file a new I9 ?

You switch from H1B to EAD by asking your employer to file a new I-9 form using EAD as the employment authorization. Also make sure you do that before your current H1B expires.
As for accruing "out of status" when I-485 is denied, that accrual will start only on the day of denial, not on the day EAD is used.

[geniusmag]

Sportsfan,

While I am drafting my post, gcq has posted his, needless to say I agree with him.

In a scenario of I-140 revocation on retaliation, some adjudicators are in a urge to send a NOID rather asking for another EVL. For a person like me this news would bring a nervous breakdown, sleepless nights and things may go worse.

I thought NOID is different from the acutal denial, meaning if one gets an NOID, he/she can still respond and argue his/her case in favor and provide any missing documentation or correct a clerical mistake. Isn't NOID the trend USCIS follows rather than a straight denial ? That should still give you one last chance to reply back and provide EVL or whatever and save the misery an all out denial brings .

[vedu]

Gurus,

I have a question. What if one continues to work full time on H1 with his main employer, but also works part time on the side with a secondary employer using EAD? In that case, does H1 become invalid because the person is also using EAD?


You answered the question yourself....sort of. Once you work on EAD for a different employer, your H1 is invalid and your legal status is "pending adjustment of status". Since ur h1 is not valid, consequently any h4 is invalid. A denial immediately puts u out of status. There might be some relief while appealing the decision. However if you had a h1, you would still be in a legal status. My advice to all is to maintain your h1b if possible.

[Kanmani]

Vedu,

H1B is valid through its validity period. You can switch to EAD/move to another H1B and come back to the same H1B position as long as the H1B is not revoked.

[geniusmag]

Vedu,

H1B is valid through its validity period. You can switch to EAD/move to another H1B and come back to the same H1B position as long as the H1B is not revoked.

So are you saying if a person leaves his H1B employer and joins another one on EAD and later finds that his 485 is denied for whatever reason, can he simply revert to his earlier H1b employer if the petition was never revoked and the job offer still exists ?
From what I have read this is a grey area and it may not be so simple to switch between pending AOS and H1b status

Additionally, isn't a employer required by law to revoke the H1B petition once the beneficiary resigns ? If yes, then above argument is a moot point anyway.

[suninphx]

Spec- does USCIS publishes any data about denial reasons?

[Kanmani]

So are you saying if a person leaves his H1B employer and joins another one on EAD and later finds that his 485 is denied for whatever reason, can he simply revert to his earlier H1b employer if the petition was never revoked and the job offer still exists ?
From what I have read this is a grey area and it may not be so simple to switch between pending AOS and H1b status

Additionally, isn't a employer required by law to revoke the H1B petition once the beneficiary resigns ? If yes, then above argument is a moot point anyway.

geniusmag,

I should add 'alien is in a period of stay authorized by the Attorney General' to my above post.

In a situation of denial described by you, the alien can open a mtr and switch back to the existing H1B.

Employer is indeed required by law to revoke the H1B, but there is a allowed time limit for them, generally 6 months (as told by Murthy) and I assumed the above scenario happened during that time window.

Practically, if anyone changed jobs, disappointed and wanted to come back to the previous employer can utilize this option.

[Spectator]

Spec- does USCIS publishes any data about denial reasons?suninphx,

Not to my knowledge. I've never seen such a document.

[GhostWriter]

Immigrant and Nonimmigrant Visa Ineligibilities report by USCIS (Link (http://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2013AnnualReport/FY13AnnualReport-TableXX.pdf))


Spec- does USCIS publishes any data about denial reasons?


suninphx,

Not to my knowledge. I've never seen such a document.

[qesehmk]

Ghost - excellent link. I noticed for immigrant visa i.e. GC roughly 300K grounds of inadmissibility and 200K cases when they overcome that inadmissibility. i.e. 100K resulted in denials. We know denials are 3-5%. Thus RFEs are 3 times that i.e. 9-15%.

In other words an 1 in 7-10 immigrants should receive one RFE as part of GC process.


Immigrant and Nonimmigrant Visa Ineligibilities report by USCIS (Link (http://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2013AnnualReport/FY13AnnualReport-TableXX.pdf))

[qriousjunta]

Eb22010,

It is too early to predict at this time, I guess there is a 50% chance of getting your EAD next year this time i.e., around Oct 2015. If you are in the process of changing jobs, considering your situation to restart the GC all over again, this is for your information that the perm processing times have been increased and straight forward approvals are long delayed up to an year.

Take decisions according to your gut feeling and give importance to what is more worth in the pursuit of GC. All the best!



My PD is June 2010. I am stuck as you and could not change job. My guess is early 2015 or worst case to get an EAD is as Kanmani mentioned (but a correction NOT 50% , i am at 90% confidence level) next year this time.
It is not worth a job change with this condition of PERM and I-140 delays and worries on PERM audit , attorney errs, RFE etc..
if possible hang in there, lets hope for the best.

[eb22010]

My PD is June 2010. I am stuck as you and could not change job. My guess is early 2015 or worst case to get an EAD is as Kanmani mentioned (but a correction NOT 50% , i am at 90% confidence level) next year this time.
It is not worth a job change with this condition of PERM and I-140 delays and worries on PERM audit , attorney errs, RFE etc..
if possible hang in there, lets hope for the best.

I hope can get it by next October. At least EAD

[helooo]

Hello Q and Gurus,
I got one year EAD from TSC. Some folks are getting one year and others are getting two years EADs.What it means?Does this mean that one year EAD folks have chance to get GC next month?
Thanks!

[gc2008]

Hello Q and Gurus,
I got one year EAD from TSC. Some folks are getting one year and others are getting two years EADs.What it means?Does this mean that one year EAD folks have chance to get GC next month?
Thanks!

They generally give one year for new applicants who apply EAD along with 485. For subsequent extensions they approve on two year basis.

Good luck!!!

[helooo]

They generally give one year for new applicants who apply EAD along with 485. For subsequent extensions they approve on two year basis.

Good luck!!!I am talking about first time filer.Some are getting one year and some are getting two years EADs.

[Spectator]

I am talking about first time filer.Some are getting one year and some are getting two years EADs.The implementation has never been consistent with the policy stated by USCIS ever since the combi-card was introduced. It is luck of the draw.

If the COD is current, the card should be issued for 1 year.

If the COD is not current, the card should be issued for 2 years.

The original Memo about this no longer seems to be available on the USCIS site (or at least it is not where it used to be).

From a Policy Memo (http://www.uscis.gov/sites/default/files/USCIS/Outreach/Interim%20Guidance%20for%20Comment/Adv-parole-ead-12-21-10.pdf) issued in December 2010 :


(2) Validity Dates.

If the immigrant visa is currently available, the I-766 Advance Parole EAD will have a validity period of one year.

If the immigrant visa is not currently available, then the I-766 Advance Parole EAD will have a validity period of two years.

(A) Visa Bulletin.

The decision to grant a one or two-year validity period will be based on the most recent visa bulletin issued by the Department of State, accessible at http://www.travel.state.gov/visa/bulletin/bulletin_5092.html.

As an example, as of November 1, 2010, EADs with a two-year validity period could be issued to Chinese or Indian nationals under the second preference employment-based visa classification and to all foreign nationals under the third preference employment-based visa classification whose priority date is after the dates listed or unavailable for those classifications. All other employment-based preference categories had an immigrant visa available on November 1, 2010. Therefore, USCIS officers would issue Advance Parole EADs to these applicants for a validity period of one year.

[qesehmk]

Hello Q and Gurus,
I got one year EAD from TSC. Some folks are getting one year and others are getting two years EADs.What it means?Does this mean that one year EAD folks have chance to get GC next month?
Thanks!
heloo Spec's answer seems pretty good to me. Those who issue EAD are not in the business of forecasting. They must be issuing EADs - 1 yr vs 2 - simply based on whether your date is current or not.

[saagar_is_cool]

Hi Gurus,

I have a question. I saw some discussions earlier on this thread which were later deleted. My H1 visa stamped on passport expired in 2009, I haven't gone to India since then for fear of not getting stamped. I have renewals since then and my current 797 is till 2016. I got a chance to file 485 this year and filed on Sep 2. I plan to go to India in Dec of this year. I am expecting EAD in the end of November timeframe and plan to go only on receiving EAD/AP. I plan to retain H1 status for removing any remote issues with going on EAD and losing status later on. Now to the questions

1. Should I get H1 stamped in India? I read somewhere that I can use AP to re-enter without stamping and use H1 later on. Is that true?
2. If H1 stamping goes into administrative thing or has some issues, can I re-enter in AP and start using my EAD. Since they have my H1 issue in their system, will that create a hassle at port of entry.
3. Is it possible to retain H1 status for working and travel in/out using AP without using EAD for employment.

Thanks in advance for your answers.

[qesehmk]

sagar - it is sad you haven't been able to visit india for a long time. The answers to all your questions are in your favor. Go without any concern when you have an AP.

p.s. - Personally I wouldn't be so much afraid of H1 stamping. But you know your situation better. Once you have an AP .. don't worry.
Hi Gurus,

I have a question. I saw some discussions earlier on this thread which were later deleted. My H1 visa stamped on passport expired in 2009, I haven't gone to India since then for fear of not getting stamped. I have renewals since then and my current 797 is till 2016. I got a chance to file 485 this year and filed on Sep 2. I plan to go to India in Dec of this year. I am expecting EAD in the end of November timeframe and plan to go only on receiving EAD/AP. I plan to retain H1 status for removing any remote issues with going on EAD and losing status later on. Now to the questions

1. Should I get H1 stamped in India? I read somewhere that I can use AP to re-enter without stamping and use H1 later on. Is that true?
2. If H1 stamping goes into administrative thing or has some issues, can I re-enter in AP and start using my EAD. Since they have my H1 issue in their system, will that create a hassle at port of entry.
3. Is it possible to retain H1 status for working and travel in/out using AP without using EAD for employment.

Thanks in advance for your answers.

[helooo]

The implementation has never been consistent with the policy stated by USCIS ever since the combi-card was introduced. It is luck of the draw.

If the COD is current, the card should be issued for 1 year.

If the COD is not current, the card should be issued for 2 years.

Spec,
Thanks for your reply.Technically all the dates are current for folks who got EAD. I don't know about internal retrogression.I think different PDs have different EAD validity.PDs before July 2008 are getting one year validity and PDs after that are getting two years validity.May be USCIS can issue GCs to first time filer with PD before July 2008 and issued them one year EADs?

[srimurthy]

Hi All,

Just a qucik Question? Not relevant for the calculations but on H1 Extension. Moderators please move to appropriate location afterwards. My employer messed up with the checks for the H1 extension and the applications came back. They resubmitted and we got a recepit with a EAC number in the first week of Sep. My I-94 was expiring on Sep-28, since we get the EAC number should I consider this as in status or should I stop working till the application is approved? I have a 140 approved and at the 6 years end of H1. Taking into consideration of the speed and accuracy with which my employer works, I start this extension in June and still landed in a last min rush.

Appreciate a response. Do not want to land in a soup because of unknow rules.

Regards.

[iatiam]

Ghost,

Thanks for the link. Very helpful.

Spec, Kanmani,

Seems like the majority of reasons for 485 denial are under 221(g) which is a very general category. Is there a specific reason why the 221(g) is used and can we at least guess what triggers 221(g).

Iatiam

[vizcard]

Hi Gurus,

I have a question. I saw some discussions earlier on this thread which were later deleted. My H1 visa stamped on passport expired in 2009, I haven't gone to India since then for fear of not getting stamped. I have renewals since then and my current 797 is till 2016. I got a chance to file 485 this year and filed on Sep 2. I plan to go to India in Dec of this year. I am expecting EAD in the end of November timeframe and plan to go only on receiving EAD/AP. I plan to retain H1 status for removing any remote issues with going on EAD and losing status later on. Now to the questions

1. Should I get H1 stamped in India? I read somewhere that I can use AP to re-enter without stamping and use H1 later on. Is that true?
2. If H1 stamping goes into administrative thing or has some issues, can I re-enter in AP and start using my EAD. Since they have my H1 issue in their system, will that create a hassle at port of entry.
3. Is it possible to retain H1 status for working and travel in/out using AP without using EAD for employment.

Thanks in advance for your answers.

You can travel with AP while working on H1. I did that since 2012.

[Spectator]

Ghost,

Thanks for the link. Very helpful.

Spec, Kanmani,

Seems like the majority of reasons for 485 denial are under 221(g) which is a very general category. Is there a specific reason why the 221(g) is used and can we at least guess what triggers 221(g).

IatiamI agree it is a good link.

It is not clear whether the report covers AOS cases under USCIS jurisdiction.

For all the other reports, the use of the term "visa" is generally used in the sense that it is issued at the Consulate. AOS is mentioned specifically in addition where the report covers it (e.g. Table V, VII).

If it covered AOS, I might have expected to see 245(k) listed as a refusal reason. That is an ineligibility specific to EB AOS cases.

The Visa Statistics are a DOS publication and they administer the CP processing, so detailed figures for CP cases only would not be a great surprise.

Ultimately, I don't know.

I agree it is disappointing that the bulk of the data is aggregated under a single code.

[vizcard]

Hi All,

Just a qucik Question? Not relevant for the calculations but on H1 Extension. Moderators please move to appropriate location afterwards. My employer messed up with the checks for the H1 extension and the applications came back. They resubmitted and we got a recepit with a EAC number in the first week of Sep. My I-94 was expiring on Sep-28, since we get the EAC number should I consider this as in status or should I stop working till the application is approved? I have a 140 approved and at the 6 years end of H1. Taking into consideration of the speed and accuracy with which my employer works, I start this extension in June and still landed in a last min rush.

Appreciate a response. Do not want to land in a soup because of unknow rules.

Regards.



i'd check with your lawyers but I'm pretty sure you can work for a period of time while pending approval.

[suninphx]

Hi Gurus,

I have a question. I saw some discussions earlier on this thread which were later deleted. My H1 visa stamped on passport expired in 2009, I haven't gone to India since then for fear of not getting stamped. I have renewals since then and my current 797 is till 2016. I got a chance to file 485 this year and filed on Sep 2. I plan to go to India in Dec of this year. I am expecting EAD in the end of November timeframe and plan to go only on receiving EAD/AP. I plan to retain H1 status for removing any remote issues with going on EAD and losing status later on. Now to the questions

1. Should I get H1 stamped in India? I read somewhere that I can use AP to re-enter without stamping and use H1 later on. Is that true?
2. If H1 stamping goes into administrative thing or has some issues, can I re-enter in AP and start using my EAD. Since they have my H1 issue in their system, will that create a hassle at port of entry.
3. Is it possible to retain H1 status for working and travel in/out using AP without using EAD for employment.

Thanks in advance for your answers.

Saagar- you can use H1 as work authorization but you won't be in H1 status anymore once you use AP to enter US.

[EB2IndSep09]

Hi All,

Just a qucik Question? Not relevant for the calculations but on H1 Extension. Moderators please move to appropriate location afterwards. My employer messed up with the checks for the H1 extension and the applications came back. They resubmitted and we got a recepit with a EAC number in the first week of Sep. My I-94 was expiring on Sep-28, since we get the EAC number should I consider this as in status or should I stop working till the application is approved? I have a 140 approved and at the 6 years end of H1. Taking into consideration of the speed and accuracy with which my employer works, I start this extension in June and still landed in a last min rush.

Appreciate a response. Do not want to land in a soup because of unknow rules.

Regards.


Agree with Viz that you should check with your lawyers. + A general information is you should file the H1 extn on or before the day your current H1 expires.
If your receipt date is earlier than Sep 28th you have covered all your bases and any further correspondence is treated as general. Another thing I would do is chk with the attorneys if the check has been en cashed by USCIS, generally they will with in couple of days after admitting the case. You need NOT to worry about working eligibility for next 180 days (gurus can pitch in and correct me if I am wrong with number of days) as you have a receipt notice which authorizes you to work during these 180 days till your H1 is approved.

[saagar_is_cool]

sagar - it is sad you haven't been able to visit india for a long time. The answers to all your questions are in your favor. Go without any concern when you have an AP.

p.s. - Personally I wouldn't be so much afraid of H1 stamping. But you know your situation better. Once you have an AP .. don't worry.

Thanks Q, I have seen two of my colleagues who went to India and got stuck there and finally got jobs and settled back there. For me, with family and commitments and after seeing these two cases, I didn't choose to risk it. That is after doing MS here and having multiple years of experience. Anyways, can you elaborate what you mean all questions are in favor.

[saagar_is_cool]

You can travel with AP while working on H1. I did that since 2012.

vizcard, are you using H1 for work authorization or for status. From what I figured out from forums, these are two different things. I am not sure if using H1 for work authorization would or would not put you out of status if underlying 485 gets revoked for whatever reason.

[saagar_is_cool]

Saagar- you can use H1 as work authorization but you won't be in H1 status anymore once you use AP to enter US.

Thanks suninphx, that's what I understand from different sources of data. When you say won't be in H1 status anymore, how does it impact if something happens to underlying 485 and it gets rejected. The only reason I want to retain H1 is to be on safe side if something were to happen to 485. I had a colleague whose 485 got denied since underlying 140 was revoked and she suddenly went out of status. The underlying reason was that the conniving ex-company revoked 140 with an earlier date and the USCIS officer denied 485 with 140 thinking its less than 180 days of moving. She had to fight legally and got it resolved but it suddenly put her out of status and she switched to H4 on her husband's H1 for status and fought it. I won't have that luxury, so I am trying to cover all bases

[qesehmk]

Anyways, can you elaborate what you mean all questions are in favor.
I meant - you can go to India with an AP. Try to stamp H1. And regardless of outcome of stamping you can enter on AP and still work on approved H1B.

The denial in India of H1B stamping is just denial of a visa. That doesn't invalidate the H1B work authorization. The reason for this apparent disconnect is because of the fact that visas are given by DoS whereas work authorization H1B is under USCIS.

My understanding is that if you enter on AP - then you automatically acquire status by using your H1B. But you may want to confirm with your company lawyer.

[suninphx]

I meant - you can go to India with an AP. Try to stamp H1. And regardless of outcome of stamping you can enter on AP and still work on approved H1B.

The denial in India of H1B stamping is just denial of a visa. That doesn't invalidate the H1B work authorization. The reason for this apparent disconnect is because of the fact that visas are given by DoS whereas work authorization H1B is under USCIS.

My understanding is that if you enter on AP - then you automatically acquire status by using your H1B. But you may want to confirm with your company lawyer.

If you enter in AP you are not in H1 status. One can regain H1 status by applying for extension and if its approved with I94 attached.
As suggested by Q - always always check with lawyer.

[zoomzipper]

If you enter in AP you are not in H1 status. One can regain H1 status by applying for extension and if its approved with I94 attached.
As suggested by Q - always always check with lawyer.

Explained by murthy a while back.. hopefully the info is still valid

http://www.murthy.com/2008/03/21/effect-of-travel-while-in-h1b-l-1-status-and-pending-i-485/


"Pursuant to the Legacy INS memorandum issued on May 16, 2000, a parolee may continue to work for the H1B (or L-1) employer "if the alien's H1B or L-1 employment authorization would not have expired had the alien not left and returned under advance parole." Such employment is not regarded as being unauthorized, even if the individual does not hold a valid Employment Authorization Document (EAD). In practical terms, while an individual in this situation would no longer hold a nonimmigrant status, s/he still would be able to use the H1B (or L-1) employment authorization to continue working for the H1B (or L-1) employer. This appears to be the most difficult concept to understand, as it does not have any parallel applications within other immigration concepts. The easiest way to grasp this is to think of the unexpired H1B (or L-1) approved petition and I-94 in this situation as employment authorization, which does not give one a corresponding status. Essentially, while the individual does not hold H-1 (or L-1) status after a paroled entry, s/he does retain some of the privileges of that status. It is important to note, however, that in the event that one's I-485 application is denied, the individual would be out of status since s/he would not be maintaining the H (or L) status.
One who chooses to enter the U.S. on AP to resume working for the H1B (or L-1) employer, according to the terms of an unexpired nonimmigrant petition, is eligible to use it as employment authorization. Therefore, s/he does not need a separate EAD. Since the employee continues to hold a valid document permitting employment, the travel and reentry do not trigger any obligations on the part of the employer with respect to Form I-9 prior to the expiration of the H1B (or L-1) petition."

[kumar777]

My wife used AP to enter into US and the same year her employer renewed her H1B. Her h1 approved with new I-94.

[nsd2013]

Hi All,
I am sorry I am total newbie to this and not sure how the I-485 approval queue works ..... I have pending I-485 and my priority date is Feb 2008(EB2) and my status still shows as 'Acceptance'. I am applying for the GC as dependent. I file my application in Aug 20013. That being said are the I-485 proceesed by application filing date or Priority dates?

[vizcard]

vizcard, are you using H1 for work authorization or for status. From what I figured out from forums, these are two different things. I am not sure if using H1 for work authorization would or would not put you out of status if underlying 485 gets revoked for whatever reason.

Those are indeed 2 different things - I was using H1 for work authorization but traveled on AP (so technically I was not in H1 status). If the 485 got denied, I would probably just need to reenter the country with my H1B and I'd be back on the H1B status. Thankfully, I didn't need to explore that as I got approved last month :)

[vizcard]

Hi All,
I am sorry I am total newbie to this and not sure how the I-485 approval queue works ..... I have pending I-485 and my priority date is Feb 2008(EB2) and my status still shows as 'Acceptance'. I am applying for the GC as dependent. I file my application in Aug 2013. That being said are the I-485 proceesed by application filing date or Priority dates?

In theory its by receipt date when dates are current. But realistically its all over the place. if you visit trackitt you will see proof of that.

Has the primary on your application been approved or is his/her application still pending?

[nsd2013]

Thank vizcard.
Yes the primary has been approved for about a year (give or take a week from today)

[srimurthy]

Agree with Viz that you should check with your lawyers. + A general information is you should file the H1 extn on or before the day your current H1 expires.
If your receipt date is earlier than Sep 28th you have covered all your bases and any further correspondence is treated as general. Another thing I would do is chk with the attorneys if the check has been en cashed by USCIS, generally they will with in couple of days after admitting the case. You need NOT to worry about working eligibility for next 180 days (gurus can pitch in and correct me if I am wrong with number of days) as you have a receipt notice which authorizes you to work during these 180 days till your H1 is approved.

Thanks for the responses. Checking with the employer and their lawyer. Meanwhile I have the receipt notice with RD of Sep-22 and in Premium.

[YTeleven]

In few hours from now we will be in FY15, this will be my last post in FY14.
I've a very positive prediction for EB3-India folks who are waiting for more than 10 years in the GC Q.
Back in May'14 I was predicting that EB3-India will have bright future ahead in this post: here (http://www.qesehmk.org/forums/showthread.php/5-EB3-Predictions-amp-Calculations?p=46298#post46298)

After a thorough data analysis I could say that in FY16 we will see a complete wipe out of EB3-I I485 inventory as shown in this graph:EB3-I I485 inventory trends (https://drive.google.com/file/d/0B89CvsiXVO92UnBIMC1qRDMzb0U/edit?usp=sharing)
Here I'm comparing the same graph with current EB3-ROW inventory trend:EB3-I I485 inventory trends comparing with EB3-ROW inventory trend (https://drive.google.com/file/d/0B89CvsiXVO92NE5OT2lnaGdrSmM/edit?usp=sharing)

After seeing these graphs you might question why would we see 20k spillover to EB3-I in FY16. This is what I'm getting from all the available data pointers.
After FY15 there will not be any demand for EB3 to consume its yearly 40k visas and that gives a massive horizontal spillover to EB3-India.
So this means we will have inventory buildup for EB3-I also in FY16.

Already, this post (http://www.qesehmk.org/forums/showthread.php/1217-EB2-3-Predictions-(Rather-Calculations)?p=53828#post53828) predicts that there is a possibility for EB2-I inventory building in FY16.