US Immigration Alert | Premium Processing Services Extended to Additional I-140 Pending Cases

Premium Processing Services Extended to Additional I-140 Pending Cases

The U.S. Citizenship and Immigration Services (USCIS) announced that it will extend premium processing services to additional pending cases. This third phase is similar to the first and second phases and will apply to certain previously filed Form I-140 petitions under the EB-1 and EB-2 classifications.

Petitioners may request premium processing upgrades by filing the new edition of Form I-907, Request for Premium Processing. Beginning September 15, 2022, the USCIS will accept Form I-907 requests for:
• Multinational executive and manager petitions that were received by the USCIS on or before January 1, 2022.
• NIW petitions that were received by the USCIS on or before February 1, 2022.

The USCIS is taking a phased approach to expanding premium processing as part of a broader effort to reduce backlogs. The USCIS will take up to 45 days to provide a decision under the premium processing request for the above Form I-140 classifications.

The Nuts and Bolts of A Family Based Green Card Process.

The Nuts and Bolts of A Family Based Green Card Process.

In our last article we wrote about who can be sponsored for a US green card as a family member. A US citizen or lawful permanent resident (green card holder) may file Form I-130 petition for the foreign national relative, with the US Citizenship and Immigration Services (USCIS) to establish a qualifying relationship with the beneficiary (family-based immigrant). In this article we take you through the different stages of the process. Please note that it is now possible to file I-130 petitions online for certain categories.

Although the process for all categories is almost the same, the I-130 processing time will vary widely based on the type of relationship (between the petitioner and the beneficiary), the place of birth of the foreign national, the USCIS’ backlogs, waiting times at the applicable consular post and the accuracy and completeness of the I-130 petition.

I-130 Eligibility

US citizens can file a Form I-130 to petition for the following eligible relatives:

  • Spouse
  • Unmarried and married children
  • Siblings when petitioners are age 21 or older
  • Mother or father when petitioners are age 21 or older

Green card (LPR) holders can file a Form I-130 to petition for the following eligible relatives:

  • Spouse
  • Unmarried child

For family-based immigrant visa applications, having an approved Form I-130 by the USCIS is the first step, i.e. a prerequisite to the immigrant visa application for a green card.

General Steps to Process Family-Based Immigrant Visa I-130 Petition

  1. File I-130 petition and the USCIS will issue receipt notice
  2. The USCIS will review the I-130 petition to determine completeness
  3. The USCIS upon review will either approve the petition or issue a Request for Evidence for any additional/missing documents.
  4. The USCIS will forward the case to the NVC
  5. The NVC asks for additional forms, documents and fees and if everything is in order it forwards the case to the appropriate Consular office outside the US
  6. The US Consular office will schedule an immigrant visa interview after which if approved, the officer will issue an immigrant visa stamp in the passport.

Please note that the process is a little different for relatives who are already in the US in another non-immigrant visa status and can apply to adjust status to immigrant status.

Also, some cases may go through additional steps depending on their circumstances and availability of documents.

Filing I-130 Petition

Form I-130 can either be filed online or via mail.

To file online, an online USCIS account must be created. Online applications make it relatively easier to receive case alerts, check the case status, upload supporting evidence and see all case related correspondence.

I-130 petitions can also be submitted by mail by confirming the USCIS service centre address to which the application must be sent. Depending on the state in which the Petitioner resides and whether the immigrant beneficiary is submitting Form I-485 as well, I-130 petitions are routed to either of the following Lockbox facilities – Dallas, Chicago or Phoenix Lockbox.

From here, it will be processed at any of the USCIS’ five service centres.

I-130 Petition Processing

The USCIS, upon receiving the I-130 application and after determining the completeness of the petition, will issue a receipt notice to the concerned Petitioner and put the case in line for further review. Processing times for an I-130 petition may vary depending on a number of factors, most notably how busy the USCIS service centre is where the petition has been filed.

Wait times of several months/years are typical. Given the COVID-19 restrictions, there has been a significant increase in filings, which has led to extensive delays in receiving receipt notices for properly filed petition with a USCIS lockbox.

The review involves scrutinizing documents to make sure that, that the US citizen’s passport and other supporting documents submitted for the immigrant beneficiary are authentic and contain any official government certifications, if necessary, from the immigrant’s home country. The USCIS is very vigilant about fraud that can take place in such matters.

Once the USCIS completes its checks and scrutiny, and if all looks fine, it will approve the I-130 petition. By way of approval, the USCIS Service Centre will notify the Petitioner, by sending an official I-130 approval notice (with a priority date) and transfer the case file to the appropriate government office. It is important to note that having an approved I-130 does not, by itself, give an immigrant any right to come to, or remain in the United States.

Priority Date

The priority date basically determines each applicant’s place in the immigrant visa waiting line. It is established based on the date that a properly filed I-130 petition is received by the USCIS. The priority date is listed on the I-797 approval notice which is mailed to the Petitioner once the I-130 petition is approved.

The immigrant beneficiary must wait for the priority date to become “current” before he/she can apply for an immigrant visa or adjustment of status. “Current”, in this context, means until the applicant reaches the front of the waiting line or there is no backlog, and a family-based green card is available. Sometimes, an entire subcategory preference can become current if there is no backlog within that category. Such instances are seldom given the current backlogs and wait times.

Immigrant Visa Consular Processing or I-485 Adjustment of Status Filing

Upon approval of the I-130 petition, depending on where the immigrant is and the choice made in the I-130 application, the immigrant beneficiary may choose to apply for the green card through the process known as “Adjustment of Status” (which takes place in the United States) or “Consular Processing” (which takes place through a US Consulate or Embassy abroad).

If the immigrant beneficiary is in the US on a valid non-immigrant visa – such as an L-1, H-1B, F-1 or K-1 they need to “adjust status” from non-immigrant to immigrant, by filing an I-485, Application to Register Permanent Resident or Adjust Status with the USCIS.

The I-485 application must be submitted with relevant documents to prove, lawful status within the US, confirm the qualifying family relationship with the Petitioner, beneficiary’s biographic information etc. The required filing fee for this step will depend on the immigrant beneficiary’s age.

When the immigrant beneficiary is outside the US, he/she will have to go through consular processing at the US Embassy or Consulate abroad, generally in the country or nationality or residence. The National Visa Center (NVC) will notify the immigrant beneficiary and/or the petitioner that they must submit additional documents (including a duly completed form DS-260) and processing fee to the NVC.

The NVC will then inform the beneficiary if the case is “documentarily qualified” or ready and that NVC will send a further notification when the Embassy or Consulate is ready to schedule an interview. During the immigrant visa interview the Consular officer will also review the documents once again and if everything is in order the officer will approve the immigrant visa that is generally valid for 12 months from the date of issue. The officer will retain the passport and return it in a few days with the immigrant visa stamp. The immigrant beneficiary must travel to the US within six months of the issue date on the visa.

Police Clearance Certificate & Medical Examination

When the I-130 application is sent to the NVC, the immigrant beneficiary will need to submit a Police Clearance Certificate (along with other civil documents) from his/her present country of residence and from all countries where he/she may have lived for six months or more since the age of 16. In India, the Police Clearance Certificate must be obtained from the Regional Passport Office. The Police Clearance Certificate is valid for one year from the date of issuance. The applicant will only need to carry a new certificate to the visa interview, if the one submitted to the NVC has expired at the time when the immigrant visa interview date is scheduled.

Additionally, the immigrant beneficiary will also need to undergo a medical exam from one of the Consulate’s panel physicians before the immigrant visa interview. Entering the US on Immigrant Visa

The immigrant beneficiary must enter the United States no later than the visa expiration date printed on the immigrant visa issued. An immigrant visa is usually valid for up to six months from the date of issuance unless the medical examination expires sooner, which may make the visa validity less than six months.

At the port of entry, the US Customs and Border Protection will inspect the immigrant beneficiary and determine whether he/she is admissible or not. If found admissible, they will allow the immigrant beneficiary to enter the United States as a permanent resident. A few weeks upon arrival (usually within 45 days), the USCIS will mail the family-based green card to the immigrant beneficiary.

LawQuest US Immigration Alert | FY2023 H-1B Cap Apparently Reached

FY 2023 H-1B Cap Apparently Reached

It appears that the H-1B CAP has been reached for FY 2023.  Over the past several days, we have noted that the USCIS is sending non-selection notifications to registrants’ online accounts. The USCIS can only send a non-selection notice to a properly submitted H-1B registration once they have determined enough cases have been selected to reach the cap.

The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, show:

“Not Selected”: not eligible to file an H-1B cap petition based on this registration.

Unlike prior years, this year the USCIS only needed to perform one selection process. During FY 2022, the USCIS conducted selections in March and subsequently in July, resulting in approximately 131,970 selections. For FY 2023, the USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations to reach the 85,000 total FY 2023 numerical allocations.

The USCIS will continue to accept and process petitions that are otherwise exempt from the cap:

  • Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number.
  • H-1B petitions filed to:
    • Extend the amount of time a current H-1B worker may remain in the United States;
    • Change the terms of employment for current H-1B workers;
    • Allow current H-1B workers to change employers; and
    • Allow current H-1B workers to work concurrently in additional H-1B positions.

We will continue to monitor the USCIS’s website for an official announcement.

USCIS Will No Longer Accept Combined Fee Payments For EB-5, Immigrant Investor Program Applications or Petitions

USCIS Will No Longer Accept Combined Fee Payments For EB-5, Immigrant Investor Program Petitions

The USCIS has announced that going forward they will no longer accept combined fee payment of Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor), filed with Form I-485 (Application to Register Permanent Residence or Adjust Status), Form I-131 (Application for Travel Document), or Form I-765 (Application for Employment Authorization by a petitioner). Combined fee payment for Forms I-485, I-131 and I-765 will be accepted, although a separate check payment for fees towards Form I-526 or I-526E must be sent and the failure to do so will force the USCIS to reject the form and reimburse the fee payment amount on account of improper fee payment.

Since requests for immigration benefits are currently being processed electronically by the USCIS, a different payment instrument is needed for each of the Form I-526 and I-526E petitions because they are not all handled through the same system. The USCIS understands that while this requirement may be rather inconvenient for the petitioners and applicants, the benefit of a computerized processing exceeds the drawbacks of submitting individual fee payments for the agency and the general public.

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