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dallasdude
04-28-2009, 01:56 PM
Addressing Employment-Based Visa Wait Times

There have been a lot of comments and questions received from readers about employment-based petitions and related applications for adjustment to lawful permanent residence.

This is a complicated subject, so I want to provide a little background. Becoming a permanent resident based on employment can require a number of steps, including obtaining a labor certification from the Department of Labor, receiving approval on a petition for alien worker from U.S. Citizenship and Immigration Services (USCIS) (Form I-140) and obtaining an immigrant visa from the Department of State or being granted adjustment of status from USCIS. In addition, by law there are numerical limits on the number of people who can immigrate to the U.S. each year in most categories. You can see a more detailed explanation about the employment-based visa application process online.

Some readers have asked about the volume of employment applications and delays that have occurred in employment-based visa petition and adjustment application processing in late 2007 and early 2008. There were a number of factors that affected USCIS' handling of these cases during that time. Employers filed more than 234,000 petitions to sponsor foreign workers (Form I-140) as the Department of Labor cleared a large backlog of labor certification applications and implemented new regulations. Adjustment-of-status application filings also soared to nearly 300,000. We attribute the increase in adjustment application filings to a couple things. First, customers' anticipation of USCIS' filing fee increase in July 2007. Second, a unique opportunity for workers and their families to file adjustment applications based on the visa availability date announced in the July 2007 Immigrant Visa Bulletin. Many of these availability dates have since reverted, creating a backlog of adjustment applications that cannot be adjudicated until a visa becomes available.

A few months ago, a customer indicated his frustration that while he can monitor the Visa Bulletin to see how it moves month to month, he still has no idea how many people are waiting in line with pending adjustment applications or how long it may be before USCIS can process and approve his application. We know this customer is not alone! In response to that customer's request, we are working to make this information available on our Web site.

I understand the importance of becoming a permanent resident. I also recognize workers may rightly want to take advantage of the limited provisions in current law that allow certain applicants to change employers without affecting their ability to adjust status. As a result, USCIS has taken the following steps:

* USCIS has increased the emphasis on processing employment-based petitions. Our goal is to complete adjudication on the older I-140 petitions and to process newer petitions within our targeted processing time of four months. We are making progress toward this goal and anticipate reaching this goal by the end of September 2009.
* USCIS is issuing employment authorization documents valid for two years, as needed.
* USCIS is working with the State Department to make sure we use every available visa number. In 2007, we had more visas available in the family-based categories than were needed, so as permitted by law, we transferred those available family-based visas for use in the employment-based application process.

I recognize that this is a difficult and complex situation and USCIS is working hard to make improvements and to increase transparency in our processes.

Mike Aytes
Acting Deputy Director, USCIS


http://www.dhs.gov/journal/leadership/2009/04/addressing-employment-based-visa-wait.html

sasidhar79
04-28-2009, 03:10 PM
I just hope that they also bring in an amendment to add spouse to existing I-485 petition.

bsbawa10
04-28-2009, 03:31 PM
>>I recognize that this is a difficult and complex situation and USCIS is working hard to make improvements and to increase transparency in our processes.


Did they ever say that they have not been working hard ? :)
They forgot to mention what the definition of improvements is:
If the case is pending , make sure that it keeps pending.
Update the case status online for some people if they are getting bored otherwise do not bother.
If the case is pending for too long , send RFE so that it is not cleared in time
If enough visa quota is not processed, then put all files in a black hole and change priority system to lottery system.
Put all files in transparent plastic bags , that will ensure transparency.

dallasdude
04-28-2009, 03:53 PM
I just hope that they also bring in an amendment to add spouse to existing I-485 petition.

I'm hoping they bring that into effect as well..it makes no sense that one who had filed for their 485 cannot file for the spouse until the PDs become current again!

jsb
04-29-2009, 10:45 AM
I'm hoping they bring that into effect as well..it makes no sense that one who had filed for their 485 cannot file for the spouse until the PDs become current again!

In terms of law (although it may seem odd) this does make sense. You do not file I-485 for your spouse. Spouse does so for himself/herself. An I-485 can be only be filed when visa is available.

Technically I-485 can only be filed when visa is available. Thereafter, it is only administrative delay. However, situation we are familiar with, that visa is available at I-485 filing time, but becomes unavailable thereafter (for the same filing), resulting in keeping an I-485 pending for want of visa, was not anticipated when law was made, as it does not make sense. Strictly speaking once I-485 is filed (because visa was available at filing time) it should not be kept pending for want of visa again. Whatever is happening is due to poor internal information at USCIS and their general inefficiency.

jsb
04-29-2009, 10:50 AM
One of the USCIS statements is:

USCIS is working with the State Department to make sure we use every available visa number...

However, they do not talk about how they do it. They need to do so in sequence of wait of candidates. In July-Aug 2008, they granted numerous EB2-I visas to those with PD in 2005 and 2006, leaving older cases in the cold. That is not fair. Why nobody addresses that?

hebbar77
04-29-2009, 02:12 PM
One of the USCIS statements is:

USCIS is working with the State Department to make sure we use every available visa number...

However, they do not talk about how they do it. They need to do so in sequence of wait of candidates. In July-Aug 2008, they granted numerous EB2-I visas to those with PD in 2005 and 2006, leaving older cases in the cold. That is not fair. Why nobody addresses that?

why do you think anyone would bother? They get their money upfront and salaries as long as we are in line. Also if they keep them pending they also get AP/EAD money!

cheers!

morchu
04-29-2009, 02:23 PM
That happened in 2008 (approvals irrespective of priority date order) and in 2007 (large surge of 485s) because they didnt have a full database of the pending applications, with details like chargability, prioritydate etc, forcing "blind" movement of priority dates in visa bulletin. These "blind" moves in dates, is the actual cause of "irregular" flow. From the recent RFEs it is obvious that they are pre-adjudicating "all" cases irrespective of priority date. I believe this is an effort to create such a database so that earlier priority dates will benefit. Also the DOS can make better assumptions when they issue the visa bulletin.

Some IV members FOIA requests might have helped a lot, to make USCIS to think in this regard. They should create such database, when they open the package for receipt itself.

Obviously as IV mentioned before control of the "flow" may not be the final answer for legal immigration issues. It needs changes from congress. But it is not USCIS fault.

One of the USCIS statements is:

USCIS is working with the State Department to make sure we use every available visa number...

However, they do not talk about how they do it. They need to do so in sequence of wait of candidates. In July-Aug 2008, they granted numerous EB2-I visas to those with PD in 2005 and 2006, leaving older cases in the cold. That is not fair. Why nobody addresses that?

chi_shark
04-29-2009, 02:27 PM
I just hope that they also bring in an amendment to add spouse to existing I-485 petition.

unless there is a change in LAW

cinqsit
04-29-2009, 02:40 PM
http://www.dhs.gov/journal/leadership/2009/04/addressing-employment-based-visa-wait.html
A few months ago, a customer indicated his frustration that while he can monitor the Visa Bulletin to see how it moves month to month, he still has no idea how many people are waiting in line with pending adjustment applications or how long it may be before USCIS can process and approve his application. We know this customer is not alone! In response to that customer's request, we are working to make this information available on our Web site.


This is very interesting...Thanks for posting this link

Knowing where we stand in the queue will be so much helpful. I hope they post this info soon...

cinqsit

ak_2006
04-29-2009, 06:57 PM
Thanks for the good post!

ksrk
04-29-2009, 07:37 PM
From the recent RFEs it is obvious that they are pre-adjudicating "all" cases irrespective of priority date. I believe this is an effort to create such a database so that earlier priority dates will benefit. Also the DOS can make better assumptions when they issue the visa bulletin.


Yeah, the recent trend in RFE (and corresponding PD's for which these RFE's are being issued) sure points to the "older" cases (or "all" cases) being opened and (hopefully) pre-adjudicated. Btw, haven't they been saying they are pre-adjudicating cases for a while now?
But it still remains to be be seen if the USCIS will follow some sort of FIFO (wrt PD or RD or ND).
I'd am still very skeptical of their process and will only believe it when I see it happening.

This database is one sure way to move forward. I can't believe they haven't put one together till now - talk about technological advancement and development!!!

saketkapur
04-29-2009, 08:09 PM
FIFO using PD, RD or ND............looks like each officer seems to be following his or her own logic.
Once the PD is made current the FIFO order should still be using PD and not RD or ND to be fair but does not look like they have been doing the same....as processing date is based on ND...so looks like once the PD is current they seem to go by ND.....

ksrk
04-29-2009, 08:19 PM
FIFO using PD, RD or ND............looks like each officer seems to be following his or her own logic.
Once the PD is made current the FIFO order should still be using PD and not RD or ND to be fair but does not look like they have been doing the same....as processing date is based on ND...so looks like once the PD is current they seem to go by ND.....

I agree it should still be PD, but even if it is ND, I wouldn't complain if they made that clear and stuck to it...

Like you say, each officer has his/her own preference and it is not clear, to date, which of RD or ND determines our fate...another complaint to add to our list of cribs with the USCIS's style of processing.

As regards visa number and per-country limits, that is a whole new list unto itself!

looneytunezez
04-29-2009, 08:26 PM
Put all files in transparent plastic bags , that will ensure transparency.

Thats the ticket....if only i had sent in my transparent plastic bag, i am sure i would be a GC holder by now... ;)

looneytunezez
04-29-2009, 08:29 PM
Thanks for the url.
Hopefully they UPDATE information often on the site, so that it remains relevant.

yestogc
04-29-2009, 08:58 PM
I request all members to put in there comments on that post in DHS site.
I know few people might say it is useless to do so ............... it may be or may not be true.

Just exercising our fingers with few key strokes will not make us weak.

morchu
04-29-2009, 09:14 PM
If you are talking about the "Indian/Chinese" most of the pending applications are not current.
So current pre-adjudications doesnt have to be in any oder. What USCIS is committed to is a shorted processing time for 485/140 applications. The processing time means pre-adjudication time for most of the Indians/Chinese (since dates are not current). Once the database is ready, the PriorityDate FIFO can be maintained easily, via calculated move on the visa bulletin dates.

FIFO using PD, RD or ND............looks like each officer seems to be following his or her own logic.
Once the PD is made current the FIFO order should still be using PD and not RD or ND to be fair but does not look like they have been doing the same....as processing date is based on ND...so looks like once the PD is current they seem to go by ND.....

jsb
04-29-2009, 11:06 PM
If you are talking about the "Indian/Chinese" most of the pending applications are not current.
So current pre-adjudications doesnt have to be in any oder. What USCIS is committed to is a shorted processing time for 485/140 applications. The processing time means pre-adjudication time for most of the Indians/Chinese (since dates are not current). Once the database is ready, the PriorityDate FIFO can be maintained easily, via calculated move on the visa bulletin dates.

How will "Priority Date FIFO" work? That is the main problem. USCIS claims to work in order of receive dates (not PD's). PD's are nowhere in the system other than on paper filings, or the receipts you get. Each center looks at cases in sequence of center's receiving date (not the RD on your receipt) which is the date you see online as "we received your case on...". Cases are checked (in sequence of dates of receipt as per above, which has no connection with PD's) for docs such as signatures, birth certs, photos, medicals etc., and PD is checked. If PD is not current, it is put aside (where we don't know), otherwise cleared.

Cases are not seen in PD sequence, as that is not physically possible.

ksrk
04-30-2009, 03:28 PM
How will "Priority Date FIFO" work? That is the main problem. USCIS claims to work in order of receive dates (not PD's). PD's are nowhere in the system other than on paper filings, or the receipts you get. Each center looks at cases in sequence of center's receiving date (not the RD on your receipt) which is the date you see online as "we received your case on...". Cases are checked (in sequence of dates of receipt as per above, which has no connection with PD's) for docs such as signatures, birth certs, photos, medicals etc., and PD is checked. If PD is not current, it is put aside (where we don't know), otherwise cleared.

Cases are not seen in PD sequence, as that is not physically possible.

I agree with you in that the USCIS tends to focus on the ND or the date "we received your case on..." (not even RD). But since they do track the PD (to find out if it is current), it shouldn't be a problem following a FIFO based on it.

Having said that though, we have all observed that their claim of working in order of ND doesn't hold either. If their actions followed their claims, I daresay our frustration and consternation would be lesser. Because they don't, as someone said earlier, this "priority system" has changed into a "lottery system" with fervent prayers every summer for "my" case to be picked up! :)

PresidentO
04-30-2009, 03:51 PM
I cant stop laughing at the jubilant celebrations of all you that USCIS acknowledges that it doesnt know the nature of the back log.

I dont know whether people are ignorant or just thinking Mr Aytes will go ahead and let them file for 485/approve their 485 with out a visa number. Are these guys being naive or ignorant? It better be the latter.

Lets look at the chronology of events

Sep 08: USCIS says it doesnt have money ot work on the nature of backlogs in sep 08 stake holder meeting

Nov/Dec 08: Probably 200 of us filed for a FOIA request for this data.

Mar 09: USCIS sits on it for 3 months or so and then sends a fee and says will furnish the data for 5000$

Apr 09: Mr Aytes from USCIS acknowledges this data needs to be available publicly. What a joke!

ksrk
04-30-2009, 03:59 PM
...as for me, I'll take any info I can get to prepare me for my next move. :)

jsb
05-04-2009, 01:57 PM
I agree with you in that the USCIS tends to focus on the ND or the date "we received your case on..." (not even RD). But since they do track the PD (to find out if it is current), it shouldn't be a problem following a FIFO based on it.

Having said that though, we have all observed that their claim of working in order of ND doesn't hold either. If their actions followed their claims, I daresay our frustration and consternation would be lesser. Because they don't, as someone said earlier, this "priority system" has changed into a "lottery system" with fervent prayers every summer for "my" case to be picked up! :)

I tried to explain reasons of "lottery system" we are experiencing. They DO NOT track PD, nor can they do so. They only check it to be current when a case is othewise considered ok to clear. PD is of relevance only for cases from certain countries, which is a small percentage in overall (including family class) picture. PD is present nowhere other than written in ink on your filings (and sometimes on receipts). They really have no way to sort, find, estimate, or perform any decision making based on PD's. That's why we see irratic PD cutoff movements (as it is all guesswork), and lottery like scenario. Most cases are processed in sequence of date you see as "your case was received on...", but may get moved around, if at the time a case was seen, something was irregular, or PD was not current, etc.

bsbawa10
05-04-2009, 02:05 PM
I tried to explain reasons of "lottery system" we are experiencing. They DO NOT track PD, nor can they do so. They only check it to be current when a case is othewise considered ok to clear. PD is of relevance only for cases from certain countries, which is a small percentage in overall (including family class) picture. PD is present nowhere other than written in ink on your filings (and sometimes on receipts). They really have no way to sort, find, estimate, or perform any decision making based on PD's. That's why we see irratic PD cutoff movements (as it is all guesswork), and lottery like scenario. Most cases are processed in sequence of date you see as "your case was received on...", but may get moved around, if at the time a case was seen, something was irregular, or PD was not current, etc.
It is not us who has made this PD system. If they have no way to track PDs , they should be out job. Give this job to somebody else who can maintain and track PDs Basically, if they are not doing their job properly, then why are they making our lives miserable.
Can we say in our coding for example, "I do not know Java and I have no way of learning it , so I will code in the language I learnt 20 years ago whether it can do the job or not, I do not care ?"

morchu
05-04-2009, 02:10 PM
The assumption is that once USCIS is efficient all applications will be pre-adjudicated in a very short time, so the order of pre-adjudication doesnt matter.

Lets "assume" (not fact) USCIS achieves their roadmap of processing times (pre-adjudication, really) by May 15nth. And assume the pre-adjudication time for any 485 is 2 months, and they maintain that. Now that means every 485 application will be pre-adjudicated and put in system within 2 months.

So now you have a clear data on every pending application before 2 months, with priority dates. So DOS can calculate, what exact date they should put in visa bulletin for June, so that USCIS can approve all the cases before that date in June.

So in an ideal system (just by some good software and procedures in place)
1. the visa bullettin dates doesnt jump 3 or 4 years back and forth
2. wont ever become "Unavailable"
3. There is no reason to put "C" (current) in any visa bulletin (this is just an extreme, but heii.... the latest USCIS touched case is 2 months back, so if you put "C" you are working with unavailable data, and assumptions).
4. may not even stay in the same date in two different bulletins (DOS can even provide priority date by exact date of the month).
5. What is expected is a small gradual move of priority dates in each visa bulletin.

Now that will maintain the priority date FIFO for all pre-adjudicated applications (which is all applications filed atleast before 2 months).

What broke the FIFO till now is the un-availability of data.

How will "Priority Date FIFO" work? That is the main problem.

HopeSprings
05-04-2009, 02:26 PM
Mr. Aytes mentioned spill over of unused Family-based visas to EB category in 2007. On a positive note, this could mean that something like that is on cards this year too and we could see some substantial movement in EB categories, especially, in EB2.

ksrk
05-04-2009, 02:58 PM
I tried to explain reasons of "lottery system" we are experiencing. They DO NOT track PD, nor can they do so. They only check it to be current when a case is othewise considered ok to clear. PD is of relevance only for cases from certain countries, which is a small percentage in overall (including family class) picture. PD is present nowhere other than written in ink on your filings (and sometimes on receipts). They really have no way to sort, find, estimate, or perform any decision making based on PD's. That's why we see irratic PD cutoff movements (as it is all guesswork), and lottery like scenario. Most cases are processed in sequence of date you see as "your case was received on...", but may get moved around, if at the time a case was seen, something was irregular, or PD was not current, etc.

I understand that they DON'T track PD. I don't understand why they CAN'T. Whether written in ink or carbon, they have (NEED) the PD information. All they need to do is "track" that information. That they don't is the problem I am pointing out - not that they CAN'T.

morchu
05-04-2009, 03:21 PM
They do track PD. NOT when receipted, but when pre-adjudicated.
USCIS argument will be that, PD calculations are not always easy and so they may not have expertise the do these calculations on receipt. And it may even delay the receipt of the 485. USCIS do track the PD once pre-adjudicated, it is just that till now this pre-adjudication was taking too long from the receipt date.

Another argument will be that, what a PD data will do, if the case was not approvable.
Lets say 5000 pending 485s with PD of Feb 2003 or before. But only one of them is approvable :) If the total visas available are 5000, should the visa bulletin date should be Feb 2003 ?? And a pre-adjudication will highlight whether a case is approvable or not.

Now I am not saying that it should be that way or this way. I am just trying to show a different view.

I understand that they DON'T track PD. I don't understand why they CAN'T. Whether written in ink or carbon, they have (NEED) the PD information. All they need to do is "track" that information. That they don't is the problem I am pointing out - not that they CAN'T.

jsb
05-04-2009, 04:17 PM
The assumption is that once USCIS is efficient all applications will be pre-adjudicated in a very short time, so the order of pre-adjudication doesnt matter.

Lets "assume" (not fact) USCIS achieves their roadmap of processing times (pre-adjudication, really) by May 15nth. And assume the pre-adjudication time for any 485 is 2 months, and they maintain that. Now that means every 485 application will be pre-adjudicated and put in system within 2 months.

So now you have a clear data on every pending application before 2 months, with priority dates. So DOS can calculate, what exact date they should put in visa bulletin for June, so that USCIS can approve all the cases before that date in June.

So in an ideal system (just by some good software and procedures in place)
1. the visa bullettin dates doesnt jump 3 or 4 years back and forth
2. wont ever become "Unavailable"
3. There is no reason to put "C" (current) in any visa bulletin (this is just an extreme, but heii.... the latest USCIS touched case is 2 months back, so if you put "C" you are working with unavailable data, and assumptions).
4. may not even stay in the same date in two different bulletins (DOS can even provide priority date by exact date of the month).
5. What is expected is a small gradual move of priority dates in each visa bulletin.

Now that will maintain the priority date FIFO for all pre-adjudicated applications (which is all applications filed atleast before 2 months).

What broke the FIFO till now is the un-availability of data.

What you mentioned is theoritical. PD is a very small component in their overall work picture, as it is significant to a very little fraction of overall number of cases. For all cases, they apply application receipt FIFO (not PD FIFO).

PD's can be all over. Consider a hypothetical case. If Mr. A files his EB3-I 485 today with PD in 2001, and Mr. B filed his EB3-I 485 in May 2006, with PD in 2005, whose application will be processed first? Mr. B's (eventhough he is not current). Mr. A's filing will be looked at after everyone who filed prior to him has been process (those with PD current will get GC, those with no-current PD's are put aside as "preadjudicated").

There is no system record/data based on PD's. PD's are just dates hand written (or printed) dates on your filings - which sometimes (as we know) they forget to write on receipts.

morchu
05-04-2009, 04:55 PM
I agree that mine is a pure theory, and USCIS may never reach that stage.

In your example:
485-A can be approved when the visabulletin date is 2001.
485-B can be approved when visabulletin date is 2005.

If there are 5000 visas available 2 months from NOW, and there are 5000 candidates with PD between 2001 and 2005. Both will get approved "simultaneously" (in two months if the assumption is 2 months is time for "preadjudication"), if the bulletin follows exact numbers from database.

If there are 5000 candidates between 2001 and 2004. 485-A gets approved, even though 485-B was pre-adjuducated before 485-A, since visa bulletin date would prevent 485-B jumping the line.

Obviously "exact" fifo can be maintained only if the "pre-adjudication" is really fast.

But in a proper system, since the dates move very gradually, most of the 2001-PD applicants would have chance to apply earlier than 2005-PD applicants, thereby maintaining a proper FIFO even on receipt dates.

Now, I think there is computer data of priority dates, after pre-adjudication. It is just that the proper procedures and systems are not in place.

What you mentioned is theoritical. PD is a very small component in their overall work picture, as it is significant to a very little fraction of overall number of cases. For all cases, they apply application receipt FIFO (not PD FIFO).

PD's can be all over. Consider a hypothetical case. If Mr. A files his EB3-I 485 today with PD in 2001, and Mr. B filed his EB3-I 485 in May 2006, with PD in 2005, whose application will be processed first? Mr. B's (eventhough he is not current). Mr. A's filing will be looked at after everyone who filed prior to him has been process (those with PD current will get GC, those with no-current PD's are put aside as "preadjudicated").

There is no system record/data based on PD's. PD's are just dates hand written (or printed) dates on your filings - which sometimes (as we know) they forget to write on receipts.

BECsufferer
05-04-2009, 08:39 PM
http://www.dhs.gov/journal/leadership/2009/04/addressing-employment-based-visa-wait.html

:confused: "What happened??? What happened ???" ... nothing :mad: Zzzz....

acecupid
05-04-2009, 09:31 PM
We should post all our comments and views on this journal. Let Mr.Aytes know how people are suffering in this category.

jsb
05-05-2009, 10:51 AM
I agree that mine is a pure theory, and USCIS may never reach that stage.
In your example:
485-A can be approved when the visabulletin date is 2001.
485-B can be approved when visabulletin date is 2005.

...

Yes, theory is interesting and gratifying and but reality is different. What you mentioned is again theory. 2001 PD IS now current for EB3-I. In my example, Mr. A files his I-485 today. Should he be given GC today (or tomorrow)? That won't happen, because his file in sequence of filing is way below, and will not even be looked at for months (or years). Mr. B's file is way up; his case is seen today, but his PD is not current, so he also does not get approved.

You can immediately comment that this system is very flawed. The fact is that it is flawed. Ombudsman looks at such inefficiencies. But by the time, problem is understood, recommendationss are made, funds are allocated, solutions are suggested, and then implemented, problem usually goes away by natural dissipation of cases, and reduced interest in GC due to long wait, etc.

Yes, if every case is pre-approved, PD's will be tracked, and everyone can know exactly when he/she will get GC. But seeing and preapproving thousands of cases in a second, can only be theoritical.

Someone asked why can't they track PD's, which is the basis of who should get GC. The fact is, to put this information into the system, each physical case file will have to be opened, and PD data entered in the system. Perhaps they already do so for new case filings, but for older cases (2006 and earlier), it is (incorrectly) seen as an unnecessary additional task, when for most cases (other than India/China), PD's is irrelevant. Usual govt way of working !!