1. What are the significant developments in the immigration laws in the past a few months?

1) 65,000 regular H-1B numbers were used up on April 2, 2007, this first day USCIS started accepting H-1B application for the fiscal year of 2008. USCIS used a random selection process for all cap-subject filings received on April 2, 2007 and April 3, 2007. There were additional 20,000 H-1B caps for advanced degree holders if the advanced degrees were obtained in the US. They were used up on April 30, 2007.
2) On May 14, the DOS announced employment-based immigration Visa Bulletin for June, 2007. There was a big progress for people born in mainland China and India compared to the visa bulletin in May, 2007
3) On May 16, DOL announced a new 180-days rule for Labor Certification effective from July 16, 2007. Under this rule, an LC will expire after 180 days if no I-140 is filed to proceed with the case. For LCs approved on or after July 16, 2007, the I-140 petition must be filed within 180 days of the LC approval. For LCs approved before July 16, 2007, the beneficiary must file the I-140 petition within 180 days of July 16, 2007.
4) On May 16, DOL determined to terminate the practice of substituting beneficiaries in labor certification cases, effective from July 16, 2007.
5) On May 17, USCIS announced it would terminate Premium Processing Service for Form I-140 petitions that request labor certification substitution from May 18, 2007.
6) On May 29, USCIS announced the filing fee increases, effective from July 30, 2007. The application fee for I-140 petition has been adjusted from $195 to $475, and the application fee for I-485 has been adjusted from $325 to $1010 (including biometrics fee, EAD, and Advance Parole) for adults and $600 for those under 14.
7) On June 13, 2007, the DOS published the Visa Bulletin for July, 2007. It announced that employment-based immigration visa numbers were available for all categories and for aliens from all countries, except unskilled worker.
On June 22, 2007, USCIS announced new “Direct Filing” instructions. TSC and NSC will accept I-140 cases from July 30, 2007 with new jurisdiction. The USCIS is yet to announce the jurisdiction for TSC and NSC.
9) On June 27, in an anticipation of many premium process filings, USCIS announced temporary suspension of Premium Processing for I-140 filings, effective from July 2 to August 1.
10) In June 2007, USCIS unexpected speeded up the approval of I-485s. Our firm alone received over 194 I-485 approvals.
11) On July 2, The U.S. Department of State announced that effective on July 2, 2007, immigrant visa numbers for all employment based categories had been used and the USCIS would not accept any new I-485 filings. On July 2, USCIS announced it would reject all Employment Based I-485 petitions received on July 2, and wouldn’t accept new I-485 cases until October 1, 2007.

2. What is the immigration visa number?

The immigrant visa number is the number issued by the US Department of State to beneficiaries of an approved immigration petition who are subject to the annual numerical limitations on worldwide immigration. Under the current visa number allocation system, each country is assigned a limited number of immigrant visas every year.

3. What is the priority date?

The priority date is the date that an alien initially expresses his/her intent to immigrate to the United States through an appropriate petition. For an employment-based immigration petition, the priority date is the date of the filing of the labor certification application (PERM) or the date of the filing of the I-140 petition when labor certification is not required in the category (EB-1a, EB-1b EB-1c, and NIW).

4. What is the cut off date?

The Visa Bulletin provides a date for each category of preferences for immigrant applications. If an applicant’s priority date is earlier than the cut-off date, then he/she may apply for adjustment of status.

5. What does it mean that my immigrant visa number is available?

If your priority date is earlier than the cut off date in a given month, it means you can apply for adjustment of status, or your pending I-485 may be approved by USCIS if you filed your I-485 earlier.

6. What categories have a higher priority over others?

Currently, EB-1 has a higher priority over EB-2. EB-2 has a higher priority over EB-3.

7. Is the country of citizenship relevant for the visa number availability?

No, only the country of birth is relevant.

8. Is the country of birth relevant?

Yes, visa numbers are determined on the basis of an applicant’s country of birth (or the spouse’s country of birth).

9. In July, 2007, the visa numbers are not available. What does that mean?

It means nobody, from born in any country in the world, can apply for Adjustment of Status on an Employment Based Category in July 2007.

10. How about August and September, 2007?

As announced by Department of State, there will be no visa numbers for August and September, 2007.

11. When will we know the new visa number availability?

The Department of State publishes Visa Bulletin on around 13th of each month for next month. We should know the visa numbers for October 2007 on or around September 13, 2007.

12. May I file I-485 on October 1, 2007?

It depends on your priority date and visa availability of October. For EB-1 category, the visa number should be available for the aliens born in any country. For EB-2 category, the visa number should be available for all countries other than China and India. We believe there is a chance that visa number retrogresses for EB-2 for people born in China and India in October 2007. Nevertheless, a retrogression is still a progress to the current unavailability.

13. What contributed the sudden reversal of visa numbers from the announcement of visa numbers available in July on June 13, 2007 and unavailable in July on July 2, 2007?

According to the statement from the US State Department, USCIS unexpected speeded up its I-485 approval, therefore, visa numbers for 2007 were used up soon in June 2007. The State Department had to revise its Visa Bulletin, as all visa numbers for 2007 were used up. We think that the aggressive announcement by the DOS on June 13, 2007 and miscommunications between DOS and USCIS contributed the sudden reversal of the visa number availability.

14. If I filed my I-485 in July, 2007, what will happen to my I-485s?

It will be returned by USCIS.

15. I heard that AILF (American Immigration Law Foundation) would file a lawsuit against the DOS and USCIS. What do you think the chance of success?

Lawsuits like this are uncertain by nature. It is hard to know the result at this point.

16. May I join the litigation? How can I be a beneficiary?

Yes, you can. If you filed your I-485 in July 2007 and your application was returned by USCIS, you are eligible to be a “plaintiff” or a beneficiary in the class action in this lawsuit. The lawsuit will be filed as a class action. AILF is now collecting plaintiffs. You may contact your attorney to obtain AILF’s lawsuit questionnaire and more information about it.

17. Is there an expense involved for me to join?

No, it’s free. AILF pays all expenses related to the lawsuit except your travel expenses to the court if you need to show up. Usually, as a beneficiary of the class, you do not need to show up.

18. I plan to apply for NIW. Should I apply now or wait until October 1, 2007?

You should apply now if your qualifications are fine and your documents are ready. By filing your I-140 petition now, you get an earlier priority date. Moreover, the filing fee will be increased by July 30, 2007.

19. I may be able to apply EB-1. Should I apply now or wait until October 1, 2007?

If your documents are ready, you should apply now to get an earlier priority date.

20. I was born in China and may apply EB-1(a) or NIW. As far as the visa number is concerned, should I apply EB-1(a) or NIW?

Visa number availability doesn’t influence I-140 filing. You can apply file I-140 now. Between EB-1(a) and NIW, you should apply EB-1(a) if you are eligible since EB-1 has a higher priority than NIW (EB-2) in terms of visa number availability.

21. If my I-485 was already filed before July 2007 and is currently pending with USCIS, will I be affected by the unavailability of visa number for July?

USCIS will continue to work on pending I-485s filed before July 2007 (fingerprints scheduled and security checks ordered, etc.). USCIS will also process and approve ancillary applications based on a pending I-485 filed before July 2007, for example, EAD and Advance Parole. However, in theory, USCIS will not approve the pending I-485s until visa numbers are available in October 1, 2007, as announced by DOS.

22. I was born in South Korea and would like to apply NIW. When may I apply I-485?

Most likely, you will be able to apply I-485s on October 1, 2007 when the new immigration visa numbers are released.

23. I was born in China and plan to apply EB-1(a). When may I apply I-485?

You should be able to apply I-485 on October 1, 2007.

24. I heard that your firm suspended your free evaluation and stopped taking new cases on June 25, 2007. Do you provide free evaluation and take new cases now?

Yes, with the suspension of I-485 cases, we provde a free evaluation service of green card application and also take new cases.

25. From July 30, 2007, the TSC and NSC will take new cases from different states. What does it mean?

This event is a so-called “direct filing.” It means applicants should file their cases directly to either TSC or NSC from July 30, 2007, based on the place of temporary employment or place of residence. In order to assist the public in determining the proper “Direct Filing” location, USCIS will release filing charts that list proper filing locations.

26. I heard from a client of your firm that your firm filed NIW and EB-1 cases in TSC in the past a few months. Is that true?

Yes, we filed all NIW and EB-1 cases in TSC in the past a few months. We expect to continue to do so until July 30, 2007.

27. How much the filing fees increase for I-140 and I-485 from July 30, 2007?

The application fee for I-140 is adjusted from $195 to $475, and the application fee for I-485 is adjusted from $325 to $1010. However, the $1010 I-485 filing fee includes the $170 fee for Advance Parole and the $180 fee for EAD. Many applicants apply Advance Parole and/EAD when they file I-485s. Therefore, the real increase of I-485 fee could be only $335 for those who apply I-485, I-131 and I-765 together.

28. When do I need to file my I-140 to avoid the fee increase?

You should file your I-140 before July 30, 2007.

29. In order to avoid the fee increase, do I need to mail out my I-140 on or before July 29, 2007 or does USCIS have to receive it on or before July 29, 2007?

In the AILA annual meeting in June, 2007, the USCIS said that it is the date of mailing that controls. You should mail your application before July 30, 2007.

30. If I would like to retain your firm, when do I have to have my documents ready?

We will file your case within one week after we receive all of your documents.

31. I would like to apply NIW and I have my recommendation letters almost ready, will you be able to file my case before July 30, 2007?

Yes.

32. Do you always use FedEx to send cases to USCIS?

Usually, we use FedEx overnight service to send cases to USCIS. However, in some special situations, we may use USPS overnight service too. For example, on Saturday, June 30, 2007, when FedEx stopped accepting overnight deliveries at 5:00pm, we used USPS overnight service in order to make sure some additional cases could be received by USCIS on July 2. On Saturday, June 30, 2007, our colleagues Mayra and Linda drove thirty miles and delivered fourteen I-485 cases to the USPS station at the airport and came back to offices until 10:00pm. All these cases were received by USCIS on July 2.

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The fifty-five professionals at Zhang & Associates, P.C. are committed to providing high quality work and professional services to our clients.

We provide free evaluations and taking new cases.

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