PLG Immigration NewsFlash
General Release Vol. 123 (May 4, 2011)

DOS Reports on Employment-Based Visa Demand; First Preference 'Extremely Low'

The Department of State's (DOS) May 2011 Visa Bulletin notes that demand in the EB-1 category is extremely low compared with recent years and that this category is expected to remain current for all countries. It also appears that there will be no EB-2 cut-off date for any countries other than China and India. Based on current indications of demand, the best-case forecasts are:

EB-2: Demand by applicants who are "upgrading" their status from EB-3 to EB-2 is very high but the exact number is unknown. Such upgrades are in addition to the known demand already reported, which makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. DOS estimates the following through September:

China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.

India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

EB-3:

Worldwide: An advance of three to six weeks.
China: An advance of one to three weeks.
India: An advance of zero to two weeks.
Mexico: Continued forward movement; no specific projections.
Philippines: An advance of three to six weeks.

DOS expects that there will be unused EB-1 and EB-2 numbers, which will be made available regardless of annual per-country limits. However, DOS must manage cut-off dates to ensure that numbers remain available for applicants from countries that have not yet reached their limits.

The Visa Bulletin for May 2011 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5424.html.

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USCIS Still Accepting FY 2012 H-1B Petitions

As of April 29, 2011, USCIS had received approximately 9,200 H-1B petitions counting toward the 65,000 cap and approximately 6,600 toward the 20,000 advanced degree cap.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students under H-1B Cap-Gap Regulations

Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn or revoked. If the student's H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the U.S.

To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition, such as the receipt (or carrier delivery confirmation, if time is short). The student's DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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USCIS Issues Guidance on Concurrent Advance Parole, EAD

Until recently, USCIS had issued EADs and Advance Paroles separately, but has determined that it was more cost-effective and more convenient for applicants to adjudicate the I-765 and I-131 simultaneously and issue a single document.

USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and advance parole whenever possible. If USCIS approves both applications, it will issue a single document: Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to EAD recipients who filed non-concurrent advance paroles.

The memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.

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Case Updates: El Badrawi; Arizona

In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedence beyond the plaintiff in the case, it is still significant because it provides a stepping-stone for other courts to be similarly persuaded.

In U.S. v. Arizona (9th Circuit Court of Appeals, April 11, 2011), the court affirmed an injunction against several controversial aspects of Arizona's S.B. 1070, with one partial dissent. The law established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.

Among other things, the Ninth Circuit noted that "Congress explicitly required that in enforcing federal immigration law, state and local officers 'shall' be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law. El Badrawi v. USA is available at http://bit.ly/eKuTqS. For a blog on that case, see http://cyrusmehta.blogspot.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. U.S. v. Arizona is available at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/10-16645.pdf.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

• USCIS Service Center processing times online:
  
  https://egov.uscis.gov/cris/processTimesDisplay.do
  
  
• Department of Labor PERM processing times:
  
  http://icert.doleta.gov/#fragment-2
  
  
• Department of State Visa Bulletin:
  
  http://travel.state.gov/visa/bulletin/bulletin_1360.html
  
  

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