Published on    30 June 2014     Hits: 650

Immigration law changes frequently. To be more exact, rather than changes in the law, administrative agencies change their evaluation standards depending on the political and economic environment and accordingly individuals’ decisions also change, rendering yesterday’s correct answer, an incorrect answer today.

This year in particular has external components such as the presidential election and economic recession. Considering these factors along with DOL and USCIS’s evaluation trend, let us contemplate on what is going to happen in the future. Predictions about the future are speculative and thus not accurate but are needed for strategic reasons from the perspective of an applicant.
    

1. Increase in EB2 (Employment based immigration second preference) processing time

First, the Department of Labor (DOL) has confirmed that it will continue to increase supervised recruitment and audits. Looking at statistics from January, these cases amount to a third of all applications that were filed. Also, there have been reports that decisions are not made immediately after the audits but rather after the cases are transferred to DOL.

Thus, the usual 3-4 month DOL processing time may be increased to an additional 6 months to 1 year if audited or selected for supervised recruitment.

In conclusion, more EB2 cases, which usually take about 1 year processing time, will take one year half to 2 years.  

2. Increase in NIW employment-based immigration and EB1-3 Multinational executive immigration.

As the processing time for EB2 is increasing, applications for other categories such as NIW and multinational executive are increasing. These two categories do not require an initial step of filing PERM through DOL but is applied directly to USCIS. For someone who qualifies for several categories, if DOL’s process is simple, then EB2 is desirable as it is safe and does not take too long. However, if there is a chance that DOL’s processing may be delayed or difficult, these two categories that do not require DOL processing become more popular, even though they may be riskier.

3. Increase in Securing EB3 Employment Based Immigration 3rd Preference  Priority Date

Because of EB3’s lengthy wait, it is common to change sponsors in the interim. In that case, the approved I-140 filed with previous sponsor can be used to preserve priority date even with the new sponsor. Confusion has occurred where USCIS has withdrawn a priority date following a previous sponsor’s withdrawal of an approved I-140 application. USCIS has recently made an encouraging announcement stating that the Beneficiary may keep his priority date, even if the sponsor requests withdrawal of an I-140.

4. Increase in Application of EB1

When the bill to eliminate country-specific quota (HR 3012) was introduced at the end of 2011, there were concerns that a cut-off line would be formed for EB2. This is because the overall quota remains the same and the reduction of the waiting time for countries with many applicants such as India and China will increase the waiting time for other countries. Currently, this bill is inactive and so we predict that EB1 applicants from India and China will continue to increase. Even though the bill was not passed, it teaches us that immigration law is more fluid than what we think so it is important to be sensitive to its changes.

5. Extension of EB5 Immigrant Investor Pilot Program

There are four immigration laws set to expire this September. E-verify, EB-5 Immigrant InvestorPilot Program, Conrad 30 J-1 Waiver Program and Non-Minister Religious Worker Immigration are among these laws. Out of these four, the EB5 Immigrant Investor Pilot Program is expected to be relatively easily extended. This program which recognizes indirect creation of jobs by investing $500,000 in a Regional center is more popular than the regular $1,000,000 program. Several regional centers have been investigated as abusing this program but since there are no big oppositions currently, we expect it to be extended.

6. Extension of Minister Religious Worker Immigration

Another category that is of interest to many groups is the Non-Minister Religious Worker Immigration. We expect extension of this program but there is a possibility that it will be amended by Senators and passed in a slightly different form or with a gap in the interim. With the program’s expiration date coming up soon, USCIS is recommending that I-485 be filed August 2012 at the latest. They have also expressed that they will process without delay before the expiration date in September. 
There have been instances in the past where a gap was created due to inability to reach an agreement before the expiration date of September 30. During this gap, USCIS cannot receive nor process any cases. For your reference, Minister Religious Worker Immigration is a permanent program and will continue irrespective of Non-Minister Religious Worker Immigration program.

7. Continuing Request for Evidence and Rejection for L-1 Intracompany Transferee visa and H-1B Professional visa

There is a saying that democracy weakens during depression. The economy is recovering but perhaps because of its slow pace, Americans’ perception of employment visa is becoming extreme. Despite the increasing Request for Evidence and rejections over the past several years, the Senate is demanding even stricter evaluation of employment visas. Thus, we are predicting that it will take some time before USCIS’s evaluation standards will be normalized.

With the new fiscal year and presidential election coming up, Congress has a tedious battle ahead. Since immigration law is a hot political issue this year, it may suffer together. To all those that are preparing for immigration, I hope that through careful preparation you will achieve successful results.