EB2-3 Predictions (Rather Calculations) - 2014

[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=Spectator;53893]

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.

I-140 Trend Chart.jpg

[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)

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)