Monthly Immigration Newsletter - the Law Office of Jocelyne J. Kim Lew, APC

Employment Based Immigrant Visa Numbers for February 2012
On January 9, 2012, the U.S. State Department released the February 2012 Visa Bulletin which shows continued availability and movement forward for employment based visa categories. First Preference Employment for all countries and Second Preference Employment for the world except China and India visa numbers remain current. India and China Second Preference Employment cut off dates have progressed by one year from the cut off date of January 1, 2009 to January 1, 2010. This significant jump is likely due to the fact that the State Department is still unaware of the adjustment cases filed since the fall of 2011 in that USCIS has not yet adjudicated these employment based adjustment cases filed during the past four months.
Third Preference Employment for the World, the Philippines and Mexico moves forward by three weeks from February 1, 2006 to February 22, 2006. China also moves six weeks from October 15, 2004 to December 1, 2004. Third Preference India moves again only one week from August 8, 2002 to August 15, 2002.

U.S. Consulate General in Chennai will no longer process Immigrant Visas
As of January 1, 2012, the U.S. Consulate General in Chennai will no longer process Immigrant visa petitions. The U.S. Embassy in New Delhi and the U.S. Consulate in Mumbai will become the only acceptance centers for immigrant visas. Fiance visas are also included in this category.

Employment Based Immigrant Visa Numbers for January 2012
On December 9, 2011, the U.S. State Department released the January 2012 Visa Bulletin which shows continued availability and movement forward for employment based visa categories. First Preference Employment for all countries and Second Preference Employment for the world except China and India visa numbers remain current. India and China Second Preference Employment cut off dates have progressed significantly from the cut off date of March 15, 2008 to January 1, 2009- a nine and a half month jump.
Third Preference Employment for the World, the Philippines and Mexico moves forward by two weeks from January 15, 2006 to February 1, 2006. China also moves five weeks from September 8, 2004 to October 15, 2004. Third Preference India moves only one week from August 1, 2002 to August 8, 2002.

USCIS Postpones New Electronic Filings
On December 2, 2011, USCIS announced that the scheduled release of the new Electronic Immigration System (ELIS), which would transform the agency into an electronic, online organization, was postponed. The delay is due to additional time needed to complete the testing of the system. USCIS did not provide any projection as to when the release will occur.

H-1B Cap Reached on 11-22-2011
The H-1B cap was reached on November 22, 2011. Thus any H-1B visa petition subject to the cap and received by USCIS on or after November 23, 2011 will be rejected. The next opportunity to file H-1B cap subject petitions will be on 04-01-2012 with an effective date of 10-01-2012.
In the interim, non cap cases such as H-1B visa extensions and/or H-1B visa transfers will continue to be accepted by USCIS.

Employment Based Immigrant Visa Numbers for December 2011
On November 10, 2011, the U.S. State Department released the December 2011 Visa Bulletin which shows continued availability and some movement forward for employment based visa categories. First Preference Employment for all countries and Second Preference Employment for the world except China and India visa numbers are current. India and China Second Preference Employment cut off dates have now progressed from the cut off date of November 1, 2007 to March 15, 2008 - a four and a half month jump.
Third Preference Employment for the World, the Philippines and Mexico moves forward by three weeks from December 22, 2005 to January 15, 2006. China also moves two weeks from August 22, 2004 to September 8, 2004. Third Preference India moves only ten days from July 22, 2002 to August 1, 2002.

New Location for U.S. Consulate General, Mumbai
The U.S. Consulate General Mumbai will relocate in mid November 2011 from the Lincoln House in Breach Candy and the American Center in Churchgate to its new facility in the Bandra Kurla Complex (BKC).
The number of interview windows for services to visa applicants and U.S. citizens will increase significantly from 13 to 44.
The Lincoln House will close its doors to the public on November 15, 2011 and reopen on November 21, 2011 at the new BKC location. The Consulate cannot provide visa services between November 15 and November 21, 2011.

Blanket L Visa Processing in India
As of December 1, 2011, the U.S. Consulate General in Chennai, India will have the sole jurisdiction to accept L-1 Blanket Visa Applications (Intra Company Transfers) for all of India.
All other visa processing procedures remain unchanged.
Spouse and children visas (L-2) and individual L-1 visas (L-1B and L-1A individuals) may be processed at all posts in India – Chennai, Hyderabad, Kolkata, Mumbai and New Delhi.
See http://hyderabad.usconsulate.gov/pr110112.html

New Medical Examination Form (Form I-693)
On November 1, 2011, USCIS introduced a new, more user friendly version of the form used to report results of medical examinations for those seeking immigration benefits. Civil surgeons completing medical examinations between November 1 and December 31, 2011, should use the new form with a revision date of 10/11/11. However, USCIS will continue to accept the previous version dated 7/20/10 for examinations completed between November 1 and December 31, 2011. Beginning January 1, 2012, civil surgeons must use the new version of the form.

H-1B Cap May be Reached By Mid-December 2011
Now that the H-1B Master’s cap was reached by October 21, 2011, all new H-1B cases (cap) will now be counted against the regular cap numbers. Between September 23, 2011 and October 28, 2011, USCIS received approximately 12,900 petitions which were counted against the 65,000 regular cap; the total number of H-1B cap filings as of October 28, 2011 was 49,200. If approximately 3,000 petitions are filed each week, the H-1B cap may be reached before the middle of December 2011.

Updates on USCIS Practices
On October 20, 2011, USCIS Director Mayorkas announced that USCIS has decided to postpone the issuance of the final rule relating to the registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. Thus, USCIS has abandoned its proposed rule that would have required advanced registration by U.S. employers to file H-1B cap petitions. Instead, USCIS will be achieving its objectives within the framework for the ongoing Transformation Initiative.
A year ago, USCIS initiated an internal system change that would alter where Receipt Notices (I-797) would be sent. Last month the change went into effect. However, this change had an unintended negative external impact. USCIS has now decided to return to its previous practice of sending the original notice to the attorney/accredited representative’s address listed on Form G-28. A courtesy copy will be sent to the address provided by the applicant or petitioner in the applicable form. This change will take effect in approximately six weeks due to the need to re-program the system.

New USCIS Practice
Effective September 12, 2011, USCIS will send the original receipt and approval notices (I-797) directly to petitioners (employers) and applicants. Copies of the notices will be sent to attorneys or accredited representatives, if a Form G-28, Notice of Entry of Appearance as Attorney/Accredited Representative, is on file.
Previously, the original notice was sent to the attorney/accredited representative’s address listed on Form G-28, while a copy was sent to petitioner or applicant.
The objective of this decision is to ensure that the original receipt, decision, and documents are sent to the address specified by the party making the request.
Form I-129, Petition for a Nonimmigrant Worker, may be sent to attorney/accredited representative if the petitioner requests so by providing the attorney’s address as the mailing address. However, using the attorney’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), as VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If a petitioner uses the attorney’s address as the mailing address on Form I-129, a cover letter should be included with the filing that clearly indicates the current address of the petitioner. This information should be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address. In addition, if the attorney’s address is used as the petitioner’s mailing address, the petitioner will not receive any I-797 notices.
For petitions filed through Premium Processing, petitioner or applicant may provide an alternate address for mailing of the original approval notice and I-94 by submitting a pre-paid, self addressed mailer.

Beware of Diversity Lottery Scams
Recently several clients of this law office requested an “assessment” of officially looking emails they received advising them that they won the Diversity Lottery.
Detailed information and instructions about the Diversity Lottery and how to apply are found at the Department of State’s website http://www.state.gov/ or more specifically at
http://travel.state.gov/visa/immigrants/types/types_1322.html.
There is no fee to apply for a Diversity Lottery through the Department of State’s website. The only method to apply is electronically, no paper submissions are available. The Department of State (U.S. government) does not send letters or emails to applicants purporting that they have won the lottery. The only way to check if you may have a winning number is to go to https://www.dvlottery.state.gov/ and check the status of your application by entering the information from the DV entry confirmation pages saved at the time of entry. If you did not save this information, you will not be able to access your status.

Employment Based Immigrant Visa Numbers for November 2011
On October 5, 2011, the U.S. State Department released the November 2011 Visa Bulletin which shows continued availability and some movement forward for employment based visa categories. First Preference Employment for all countries and Second Preference Employment for the world except China and India visa numbers are current. India and China Second Preference Employment cut off dates have now progressed from the cut off date of July 15, 2007 to November 1, 2007 - a three and a half month jump.
Third Preference Employment for the World, the Philippines and Mexico moves forward by two weeks from December 8, 2005 to December 22, 2005. China also moves two weeks from August 8, 2004 to August 22, 2004. Third Preference India moves only one week from July 15, 2002 to July 22, 2002.

Number of H-1B Cap Filings
USCIS has not provided any further information concerning H-1B cap filings except for the information provided early September. Between August 26, 2011 and September 9, 2011, USCIS received approximately 3,200 petitions against the 65,000 regular cap; this is about a 20% decrease compared to the previous two weeks of August 2011. The total number of H-1B cap filings as of September 9, 2011 was 32,200. Whereas, 16,700 petitions had been filed against the 20,000 Master’s or higher cap, an increase of 900 petitions, approximately a 20% decrease compared to the first two weeks of August 2011.

USCIS to Continue Accepting Employment Based Adjustment Cases
The Department of State (DOS) advised that all employment based (EB) immigrant visas have been distributed for the fiscal year 2011, which ends on September 30, 2011. However, USCIS will continue accepting adjustment of status applications based on the September visa bulletin through the entire month of September.
Every fiscal year (October 1 – September 30th), at least 140,000 employment-based immigrant visas are made available to qualified applicants who seek to immigrate based on an offer of employment to the principal applicant.

Department of State (DOS) Announces Exhaustion of Employment Based Visa Numbers
DOS announced that effective September 15, 2011, the Fiscal Year 2011 (ending September 30, 2011) employment based annual visa limit has been reached.
No employment based adjustment applications (I-485s) should be adjudicated until October 1, 2011 (Fiscal Year 2012) due to the lack of visa number availability at this time.

Prevailing Wage Determination Status
Department of Labor (DOL) is working through its backlog of Prevailing Wage (PW) requests, which have been filed in support of PERM Applications.
DOL advised that a team of employees from Washington, DC and Chicago has been assembled to work on the backlog of PERM prevailing wage determinations. The team is working on this backlog on a FIFO (First In First Out) basis.
Prevailing wage requests that remain pending beyond the current date may be delayed due to complicated issues such as use of an alternative wage survey and specific geographic location. Right now, all prevailing wage requests are deemed to be “backlogged”.
DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1, 2011.
This office received on September 28, 2011 a PW Determination for a request submitted to DOL on July 17, 2011.

Diversity Visa Lottery Scams
Beware that only the U.S. Department of State (http://www.state.gov; http://travel.state.gov/visa) is authorized to issue immigrant visas to winners of the Diversity Lottery.
There has been an increase in fraudulent emails sent to Diversity Immigrant Visa Applicants with an attempt to extract a payment. Please visit the Department of State site for more information:
http://travel.state.gov/visa/immigrants/types/types_1749.html

2013 Diversity Immigrant Visa Program (DV-2013)
The Diversity Immigrant Visa Program is administered on an annual basis by the Department of State (DOS) and is conducted based on the United States law which provides for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For fiscal year 2013 (October 1, 2012 to September 30, 2013), 50,000 diversity visas will be made available.
For DV-2013, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.
For DV-2013 selection, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible.
Entries for the DV-2013 lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011, and noon Eastern Daylight Time (EDT) (GMT-4), Saturday, November 5, 2011. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be processed.

U.S. Consulate General, Mumbai Resumes H & L Visa Processing
The U.S. Consulate General, Mumbai announced the resumption of interviews in Mumbai for H and L visas.
The Consulate opened the appointment schedule on August 26, 2011; the first interview appointments became available on September 6, 2011. All interviews will be conducted at the Lincoln House Consulate building, located at 78, Bhulabhai Desai Road, until further notice.
Please visit VFS, The Consulate’s visa scheduling partner, at http://vfs-usa.co.in/ApplnForms/ScheduleMenu.aspx to make your a appointment on-line.

Employment Based Immigrant Visa Numbers for October 2011
The new fiscal year for the government will begin on October 1, 2011. With this new fiscal year, the October 2011 Visa Bulletin released by the U.S. State Department shows continued availability and some movement forward for employment based visa categories. First Preference Employment for all countries and Second Preference Employment for the world except China and India visa numbers are current. India and China Second Preference Employment cut off dates have now progressed from the cut off date of April 15, 2007 to July 15, 2007 - a three month jump.
Third Preference Employment for the World, the Philippines and Mexico moves forward by two weeks from November 22, 2005 to December 8, 2005. China moves three weeks from July 15, 2004 to August 8, 2004. Third Preference India moves only one week from July 8, 2002 to July 15, 2002.

Number of H-1B Cap Cases Filings in August 2011
During the month of August 2011, USCIS received approximately 6,300 petitions against the 65,000 regular cap; this is almost a 50% increase compared to the month of July 2011. The total number of H-1B cap filings as of August 26, 2011 was 29,000. Whereas, 15,800 petitions have now been filed against the 20,000 Master’s or higher cap.

Diversity Visa Lottery 2012 (DV-2012) Results
The Kentucky Consular Center has notified the winners of the DV-2012 lottery. The lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the Unites States. Approximately 100,021 applicants have been registered and notified. The U.S. Department of State’s Visa Bulletin indicates whom of these 100,021 applicants may apply for an immigrant visa. More than 50,000 persons are selected since not all “winners” who are initially registered will pursue their visas/permanent residency.
Applicants registered for the DV-2012 program were selected at random from 14,768,658 qualified entries (19,672,268 with derivative applicants) received during the 30-day application period that ran from noon on October 5, 2010 until noon on November 3, 2010. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.
Once the total 50,000 visa numbers have been used, the program for fiscal year 2012 will end. Selected applicants who do not receive visas by September 30, 2012 will derive no further benefit form their DV-2012 registration.
Only applicants in the DV-2012 program who were selected for further processing have been notified. Those who have not received notification were not selected.
Below are listed the regions/countries which received the highest numbers of visas (this is not a compete list):

AFRICA
Nigeria 6,024
Ethiopia 4,902
Congo, Democratic Republic 3,445

ASIA
Iran 4,453
Nepal 3,258
Bangladesh 2,373

EUROPE
Ukraine 5,799
Uzbekistan 4,800
Turkey 3,077

NORTH AMERICA
The Bahamas 15

OCEANIA
Australia 900
Fiji 628
New Zealand 309

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
Venezuela 925
Cuba 292
Trinidad and Tobago 175

Prevailing Wage Determinations Update
Requests for Prevailing Wage (PW) Determinations, Requests for Reconsideration or Appeals to the Center Director at the Department of Labor (DOL) have been on hold basically during the months of July and August. This was as a result of the DOL needing to work on re-issuing H-2B wage determinations to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011.
However, as of the end of August, it appears that the DOL has resumed the issuance of Prevailing Wage (PW) Determinations for PERM cases.

Employment Based Immigrant Visa Numbers for September 2011
The September 2011 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. The extra 12,000 visa numbers made available to the Second Preference Employment visa category are being exhausted so that India and China Second Preference Employment cut off dates, although still available, have not progressed from the cut off date established in August of April 15, 2007.
Third Preference Employment for the World, the Philippines and Mexico moves forward by three weeks from November 1,2005 to November 22, 2005. China moves only one week from July 8, 2004 to July 15, 2004. Third Preference India moves five weeks from June 1, 2002 to July 8, 2002.

H-1B Cap petition Filings
As of July 22, 2011, USCIS had received a total of 21,600 petitions against the 65,000 regular cap. This is an increase of 3,200 filings during the month of July. Whereas 13,300 petitions have now been filed against the 20,000 Master’s or higher cap, an increase of 1,400 petitions during the same month.

First Preference Employment Immigrant Visa Petitions
USCIS has recently released data pertaining to the processing of First Preference Employment Immigrant Visa Petitions including Extraordinary Ability (E-11), Outstanding Researcher (E-12) and Multinational Executive or Manager (E-13) for the Nebraska and Texas Service Centers.
During the fiscal year of 2010 (October 1, 2009 to September 30, 2010), the Nebraska Service Center issued Requests for Evidence (RFEs) for 992 E-11 petitions out of 1,008 petitions filed. For E-12 petitions, 541 RFEs were issued on 1,015 petitions filed. Whereas for E-13 petitions, 1470 RFEs were issued for 2,443 petitions filed.
During the fiscal year of 2011 (October 1, 2010 to July 19, 2011) the Nebraska Service Center provided the following statistics:
E-11 – 840 petitions filed vs. 415 petitions receiving RFEs;
E-12 – 715 petitions filed vs. 226 petitions receiving RFEs; and
E-13 – 2,256 petitions filed vs. 831 petitions receiving RFEs.
On average, during the past two year period, 50% of all petitions were issued RFEs, while approximately 80% of the petitions were approved.
During fiscal year 2010, the Texas Service Center received 4406 E-11 petitions, out of which 1,791 were issued RFEs. Out of 2492 E-12 petitions filed, 438 received RFEs and out of 5530 E-13 petitions filed, 1,120 received RFEs.
During fiscal year 2011, the Texas Service Center statistics are as follows:
E-11 – 3,237 petitions filed vs. 1,411 petitions receiving RFEs;
E-12 – 1,856 petitions filed vs. 458 petitions receiving RFEs; and
E-13 – 4,888 petitions filed vs. 1,059 petitions receiving RFEs.
On average, during this two year period, approximately 25% of petitions were issued RFEs and 70% of the petitions were approved.

Employment Based Immigrant Visa Numbers for August 2011
The August 2011 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. Due to the extra 12,000 visa numbers being made available to the Second Preference Employment visa category, India and China Second Preference Employment cut off dates continue to progress; for August the numbers have progressed by five weeks to April 15, 2007.
Third Preference Employment for the World and the Philippines moves forward by three weeks from October 8,2005 to November 1,2005; while Mexico progresses also to November 1,2005. China moves only one week from July 1, 2004 to July 8, 2004. Third Preference India moves one month from May 1, 2002 to June 1, 2002.

Number of H-1B Cap Cases Filed By End of June 2011
During the month of June 2011, USCIS received approximately 4,300 H-1B regular cap subject petitions, about 400 more petitions received than in May 2011. Thus, as of June 24, 2011 (the last count), USCIS had received a total of 17,400 petitions against the 65,000 regular cap. Within the same time frame, 2,100 petitions were filed against the 20,000 Master’s or higher cap, about 300 fewer petitions than in May 2011. The total number of petitions received against the 20,000 cap as of June 24, 2011 was 11,300.

Employment Based Immigrant Visa Numbers for July 2011
The July 2011 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. Due to the extra 12,000 visa numbers being made available to the Second Preference Employment visa category, India and China Second Preference Employment cut off dates have progressed to March 8, 2007; this is almost a five month jump forward from October 15, 2006.
Third Preference Employment for the World and the Philippines moves forward by three weeks from September 15, 2005 to October 8,2005; while Mexico progresses to July 1, 2005 and China moves six weeks from May 15, 2004 to July 1, 2004. Third Preference India moves eight days from April 22, 2002 to May 1, 2002.

Number of H-1B Cap Cases Filed By End of May 2011
During the month of May 2011, USCIS received approximately 3,900 H-1B regular cap subject petitions, about 40% of the number of petitions received in April 2011. Thus, as of May 26, 2011 (the last count), USCIS had received a total of 13,100 petitions against the 65,000 regular cap. Within the same time frame, 2,400 petitions were filed against the 20,000 Master’s or higher cap, about 36% of the number of petitions received in April 2011. The total number of petitions received against the 20,000 cap as of May 26, 2011 was 9,200.

Employment Based Immigrant Visa Numbers for June 2011
The June 2011 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. Due to the extra 12,000 visa numbers being made available to the Second Preference Employment visa category, India and China Second Preference Employment cut off dates have progressed to October 15, 2006; for India this is more than a three month jump forward from July 1, 2006 and for China a two and a half month progression from August 1, 2006.
Third Preference Employment for the World and the Philippines moves forward by three weeks from August 22, 2005 to September 5, 2005; while Mexico progresses to December 22, 2004 and China moves one month from April 15, 2004 to May 15, 2004. Third Preference India moves one week from April 15, 2002 to April 22, 2002.

USCIS Improves Mail Delivery by Using USPS
USCIS now uses USPS Priority Mail with Delivery Confirmation to deliver certain immigration documents in a safe, secure and timely manner.
This partnership between USCIS and USPS enables USCIS to confirm delivery of permanent resident cards and documents pertaining to travel and employment authorization. With USPS tracking information, USCIS customers can easily stay up-to-date on the delivery status of their documents and USPS customers can confirm that these essential documents were delivered to the proper address.
The new initiative provides:
· The ability to track the status of documents with USPS tracking information; and
· Quicker delivery – on average, documents sent through USPS Priority Mail should arrive two to four business days sooner that with first class mail.
Customers who receive notices of approval can contact USCIS’ Customer Service Center at 800-375-5283 to request tracking information for their documents.
Customers should wait at least two weeks after getting their approval notice before calling for information regarding their cases. When requesting tracking information, customers must provide information from the receipt notice received for their application. After receiving the tracking number from the USCIS Customer Service Center, the delivery status can be tracked by visiting the Postal Service website at www.usps.com and entering the USPS tracking number into the Track & Confirm field.

H-1B Cap Filings during April 2011
During the month of April 2011, USCIS received 9,200 H-1B cap subject petitions, a little more than half the number compared to April 2010, when approximately 16,500 petitions had been received against the 65,000 numbers available. Whereas a total of 6,600 Master’s or higher cap petitions were received during April 2011 compared to 6,900 during April 2010.

Employment Based Immigrant Visa Numbers for May 2011
The May 2011 Visa Bulletin released by the U.S. State Department shows continued availability for First Preference Employment for all countries and Second Preference Employment for the world except China and India. Due to the extra 12,000 visa numbers being made available to the Second Preference Employment visa category, India Second Preference Employment cut off date has progressed by almost two months from May 8, 2006 to July 1, 2006 and Second Preference for China has progressed 10 days , so that the new cut off date is now August 1, 2006 instead of July 22, 2006.
Third Preference Employment for the World and the Philippines moves forward by one month from July 22, 2005 to August 22, 2005; while Mexico progresses to September 8, 2004 and China moves six weeks from March 1, 2004 to April 15, 2004. Third Preference India moves one week from April 8, 2002 to April 15, 2002.

Impact if Government Shuts Down
If the U.S. Congress is unable to reach a consensus regarding the budget by Friday, April 8, 2011, the Federal government will close at midnight Saturday April 9, 2011.
Generally, when the government shuts down for budgetary reasons, only “essential” governmental bodies are allowed to work.
The impact of a possible government shut down on USCIS is unclear as USCIS’ budget is funded by filing fees.
If there is a shut down, Department of State (DOS) will likely be the same it was in the 1996 government closing. Then, the only visa issuance processing was for some diplomats and for “life or death” situations.
Customs and Border Patrol (CBP) are considered “essential personnel” and although staffing may be more limited than usual, the borders will be open and CBP is not sure how the shutdown will affect the processing of applications filed at the border.
Department of Labor (DOL) will not be available to respond to email or other inquires. It is not known if iCERT/PERM programs would continue to function.
Fortunately a compromise was reached on the budget and the government offices were not shut down.

Additional Visa Numbers for EB-2 Category
Approximately 140,000 employment-based visa numbers are available for fiscal year 2011 (ends September 30, 2011). Each independent country of the world is limited to no more than 7% of that total. There are five employment-related preference classifications, with each allocated a certain percentage of the total. The second preference (EB-2) is allocated 28.6 % of the total.
Visa numbers are made available in priority date order within each preference classification without regard to the country of chargeability for an applicant. There is an exception for those countries which are expected to reach their 7% limitation within a fiscal year.
India and China are both expected to reach their 7% limitation in fiscal year 2011 based on “reasonable estimates” of visa usage the Visa Office is permitted to make by law. India had already reached its 2011 EB-2 allocation by April 2011. China is approaching its EB-2 allocation and is expected to reach it by July 2011. This means that India and China are limited to no more than 28.6 % of their entire country limitation in EB-2. The China and India cut-off dates are currently set to 2006 to manage the approximately 2,800 visas typically available under EB-2 annual limit for each country (7% limitation).
The law provides that if the 140,000 employment-based visa numbers are not used, the extra visa numbers are to be utilized without regard to the 7% per country limitation.
The law also provides that unused visa numbers from EB-4 and EB-5 will be added to the EB-1 total and unused EB-1 visa numbers will be available for EB-2.
The Visa Office is currently estimating that at least 12,000 extra visa numbers will be available for EB-2 this year.
By law, the extra 12,000 EB-2 numbers are made available to the entire world in priority date order and they are allocated without regard to the country of chargeability.
There are at least 17,400 applicants who have filed EB-2 adjustment of status applications and whose priority dates fall within the 2006 calendar year. For the most part, these are applicants who filed adjustment of status applications in July or August 2007.
In addition, there is an unknown number of applicants with 2006 priority dates who have “upgraded” from EB-3 to EB-2 by filing new PERM applications and preference petitions. And there is an unknown number of applicants with approved EB-2 petitions who do not have pending adjustment of status applications.
The 12,000 “otherwise unused” numbers will be fully utilized by those with 2006 priority dates. Of the 17,400 presently “known” applicants, 13,200 are from India and 4,200 are from China.

Same or Similar Occupational Classification Questions
The 21st Century Act of 2000, commonly referred to as AC-21 (job flexibility), provides that if an application for adjustment of status (employment based) has been filed and remained unadjudicated for 180 days or more, the application shall remain valid with respect to a new job/employer. However, the following condition must be met: the new job must be in the same or a similar occupational classification as the job for which the original petition was filed.
The Department of Labor uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of using it is to classify workers into occupational categories and to organize occupational data.
In determining if a position qualifies as same or similar occupational classification, USCIS Officers may compare factors including, but not limited to:
· The job duties of both positions;
· The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position; and
· The wages associated with each position.
USCIS Officers will review the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.
A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a case should not be denied solely because a second position pays more or less than the original. Allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations will be considered. Also, the job duties must be sufficiently similar.