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L A W L E R & L A W L E R    N E W S L E T T E R [ June 2009 ]

H-1B Visas Still Available

To the surprise of many, there were only about 41,000 H-1B visa applications in April when the visas first became available out of 65,000 possible count. The 20,000 extra visas for advanced degree holders have about been used but advanced degree holders can also use one of the 65,000 numbers. The USCIS says only a few hundred new cases are being received each day.  As of today, only about 44,400 have been used. So it looks like H-1Bs can continue to be filed for the next few weeks or possibly months.

Washington News

In April, in meetings in Washington, DC with a number of officials including from the U.S. Citizenship & Immigration Services, Department of State, Department of Labor, and Customs and Border Protection as well as Capital Hill, I learned we will soon be seeing:

• Green cards that will be green
• 2-year work and travel permits in one card (combined Employment Authorization Document (EAD) and Parole Letter)
• Faster processing of some I-140 green card petitions (we will see)
• Premium processing of some I-140 petitions - i.e., 2-week processing with a fee of $1,000
• More use of waivers by Customs and Border Protection when people have problems at the Port of Entry
• Possibly more restrictions on H-1Bs to prohibit use of foreign workers to outsource work

Department of State Advises of Shortage of Visa Number Availability Especially for Those Born in India or China

Charles Oppenheimer of the Department of State (DOS) Visa Office advises of news about the movement of priority dates in the future. He estimates that all 140,000 employment based immigrant visa numbers will be used this fiscal year (10/1/08 through 9/30/09). Other significant points include:

• The employment-based 4th preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 09, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
• The employment-based 5th preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
• The surge in employment-based 4th and 5th preference numbers is significant beyond those specific categories.  Historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based 1st and 2nd preference categories.  This has allowed the China and India cut-off dates to advance further than would be possible if those categories were fixed at their annual limits. This means EB1, and EB2 immigrants from China and India could have an even longer wait to obtain green cards.
• The EB1 category (extraordinary ability, outstanding researchers and multinational managers) worldwide will remain current the rest of the fiscal year but demand is high.
• The EB1 categories for India and China will be current during the month of June 09, but could require a cut-off date in Aug. or Sept. should EB1 demand remain heavy. China and India have benefited from the excess EB1 numbers for all other countries.  However, because of the high demand from other countries this year, there are fewer numbers to "fall across" to India and China.
• EB2 (MS or BS + 5 yrs exp.) India.  The prognosis is grim.  For June 09, the cut-off date is 1/1/2000, and the category may become unavailable completely in Aug. or Sept. 09.  There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number.  India, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for Indian EB2 applicants can be measured in years, even decades, without legislative relief. 
• EB2 (all other workers) China. The prognosis is equally grim.  As of July 09, the cut-off date will be 1/1/2000 and the category may become unavailable completely in Aug. or Sept. 09.  There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number to be approved. China, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for India born EB2 applicants may be measured in years, without legislative relief.
• EB3 worldwide will be unavailable the remainder of this fiscal year.  As the DOL cleared up its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year.  As of 10/1/09, the DOS currently estimates the EB3 worldwide cut-off date will be 3/1/03.  There will be extended delays in this category.
• EB3 visas for India, China and Mexico applicants will be unavailable this fiscal year.  It is estimated, based on current demand for visa numbers that as of 10/1/09, the following cut-off dates could be established: China will be 3/1/03; India will be 11/1/01; and Mexico will be 3/1/03.
• There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the DOS awaiting a visa number.
• There are 2.7 million family based applicants on the waiting lists for consular processing.  This information was listed in the March Visa Bulletin.
• There could be approximately 50,000 employment based applicants on the waiting lists for consular processing.
• Currently almost 90% of all employment based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.
  The solution to this long backlog is to advocate that Congress add more visa numbers or exempt spouses and children from needing a visa number.  For those who can afford it, the EB-5 (investor) category is looking better all the time.  See our web page www.aboutvisas.com for details on all these visa categories and the EB-5.

News at Lawler & Lawler

• We are delighted to welcome Camiel Becker who joined our firm as an Associate.  Camiel is fluent in Spanish and has experience with both business visas and deportation defense.
• We also have a new Paralegal Karena Acree-Paez. She has many years experience and is also fluent in Spanish.
• The fifth edition of my book on business visas was published on June 3. This law book is now 700 pages.

Please note our new address is:

50 Francisco Street, Suite 118
San Francisco, CA 94133
Here's for a strong and prosperous 2009 for us all!

Regards,
Martin Lawler
Lawler & Lawler