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This article summarizes the most significant developments in immigration law during the 2009 calendar year.

USCIS sped up processing for I-140 cases

USCIS sped up processing for I-140 cases to reduce backlogging.

In July and August 2007, USCIS increased filing fees and made visa numbers available in all employment-based immigration categories. Those affected applicants rushed their petitions to make the deadline. In the second half of 2007, USCIS received over 234,000 I-140 petitions and 300,000 I-485 petitions.

According to USCIS, as of June 15, 2009, on average, an I-140 application takes less than four months to process.

Implications of this event: Faster processing allows applicants to receive decisions on their petitions in a shorter amount of time. That is good news for all employment-based immigration applicants as they can plan their career and life with greater ease.   

Premium processing for I-140s: EB-1(A), EB-1(B), EB-2 non-NIW, and EB-3

On June 29, 2009, USCIS resumed premium processing for select I-140s: EB-1(a), EB-1(b), EB-2 (except NIW), and EB-3.

Via premium processing, an applicant applying in one of the categories above can pay an additional $1000 fee. With that, USCIS guarantees that the application will be approved, denied, or given a request for evidence within 15 days of receipt. In the event that USCIS does not make a decision within 15 days, the petitioner will receive a full refund.

Those who have already submitted an EB-1(a), EB-1(b), EB-2 (except NIW), and EB-3 can also upgrade their applications to premium processing.

Implications of this event: This development is extremely important for EB-2 and EB-3 applicants who face the six year limitation. Fast approval could allow such applicants to quickly take advantage of the three year extension rule (which only applies to non-current visa numbers). Furthermore, it will allow aliens to fix the priority date of their labor certification. While the expediency of premium processing is a draw to many, applicants should only apply if they have strong credentials. In some circumstances, premium processing may draw an adverse decision on an application that would otherwise be approved via normal processing.

USCIS launched new website on September 22, 2009

On June 25, 2009, President Barack Obama announced that USCIS would unveil their new website September 22, 2009. The website was initially redesigned in October 2006 to follow the Department of Homeland Security’s website. As part of USCIS’ effort to better facilitate the immigration process by making information more accessible, they once again decided to redesign their website. For three months, USCIS conducted a number of surveys and held various focus groups to assess the navigability of the site. Based on feedback received, USCIS implemented more “customer-centric” features. The new website allows petitioners to get status updates on their applications through email and text message. In addition, it boasts a much more aesthetically pleasing design. One new feature the website has is that it directly takes users to the specific information they need based on what type of application they want to file and whether they are the beneficiary or petitioner of that application. The new website also takes into account the high number of Spanish users. With one click of a button, the text switches to Spanish. 

Implications of this event: This is one of the many measures USCIS took this year to improve its operational efficiency. Overall, the new website is much more user friendly than the old one. However, it can certainly afford a few more improvements, as it still has several broken links. 

Senator Ted Kennedy passes away

On August 25, 2009, Senator Ted Kennedy passed away after a year-long battle with brain cancer.

Born February 22, 1932, Ted Kennedy was the youngest brother of former president John F. Kennedy and presidential candidate Robert Kennedy. Ted earned a bachelor’s degree from Harvard University and a J.D. from the University of Virginia. Following in the footsteps of his famous brothers, Ted Kennedy entered politics, becoming a senator of Massachusetts shortly after his brother, JFK, left that position to fulfill his role as President.

As Senator of Massachusetts, Ted Kennedy was a huge advocate of the Immigration and Nationality Act of 1965. Before passage of this act, the United States allotted 1/6th of one percent of a country’s population to immigrants. This was particularly unfair for countries with small populations. As a result of this act, the United States revised this policy and allotted 170,000 visas to countries located in the Eastern Hemisphere, limiting immigration to 20,000 people per country.

Ted Kennedy’s second mark on immigration came in 1986 when he supported the Immigration Reform and Control Act. The purpose of this act was to allow people who had resided illegally in the United States to become legal immigrants. Under passage of this act, approximately 2.7 million people became legal residents of the U.S.

Finally, Ted Kennedy was a strong advocate of the Immigration Act of 1990.  Passage of this act created the diversity lottery system and also increased immigration numbers for foreign nationals.

Implications of this event: With the passing of Ted Kennedy, the United States lost an important advocate of immigration reform. We hope that others follow suite and continue improving measures for those immigrants already here in the United States as well as for prospective ones abroad.

USCIS releases I-485 employment-based inventory data

Fed up with visa backlogs, a group of engineers from Silicon Valley came together to form the Legal Immigration Association. Last year, they suggested that USCIS publicly release their I-485 information. LIA and USCIS representatives met in Washington early this year. Finally, on September 23, 2009, USCIS released its I-485 data to the public.

Data is separated into six different charts. There is one general chart; the other five are based on country of origin. Because the United States receives a large volume of applications from residents of China, India, Mexico, and the Philippines, these nationals may move up in line slower than nationals from other countries. As such, the most accurate way to determine your place in line, as well as approximately how long it will take for USCIS to get to your application, is to look at both the general and country specific charts (if applicable). USCIS plans to update this information every quarter. For applicants interested in seeing progress, they can compare old charts with new ones.

Implications of this event: When this data was made public, USCIS announced that there were over 200,000 petitioners awaiting decisions on their I-485 petitions. LIA worked hard to pass this measure because they firmly believe that without a green card, it is difficult, if not impossible, for professionals to advance in the American workforce. This measure was one of several taken by USCIS this year to improve and better facilitate the immigration process, certainly making it easier for applicants to assess their place in line.

H-1B cap for FY2010 took eight months and twenty-one days to be filled

There are a set number of H-1B visas that can be given to beneficiaries each year. Typically, there are 65,000 regular spots known as cap subject petitions, with an additional 20,000 spots reserved for advanced degree holders. Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for cap subject petitioners. Any unused spots reserved for Singaporean and Chilean residents are recycled the following fiscal year, not allotted back to the general pool. All prospective H-1B visa holders who receive job offers from non-profit or governmental organizations are not subject to the annual cap.

As of April 13, 2009, 43,000 H-1B cap subject and 20,000 advanced degree holder petitions had been filed. In the months following this, H-1B filing slowed; furthermore, USCIS adjusted the count based on petitions denied or withdrawn. On August 7, 2009, halfway through FY2010, USCIS announced that 44,900 cap subject petitions had been counted towards the quota. In October, November, and December of FY2010, H-1B filing picked up significantly. By December 21, 2009, USCIS announced that it had received enough petitions to fill both the cap subject quota as well as the advanced degree quota and would no longer accept petitions for these two categories for FY2010. This year, it took eight months and twenty-one days for H-1B availability to cease. This is quite unusual as H-1B availability typically ceases in a matter of a few months. In both 2007 and 2008, numbers ran out the first week USCIS began accepting applications.

Additionally, On July 1, 2009, DOL implemented a new Labor Condition Application (LCA) system known as the iCERT Visa Portal System. With every H-1B petition, applicants are required to file an LCA. The previous system approved LCAs immediately. However, this new system takes up to seven business days to process an application, which could explain why it has taken longer to fill the quota this year.

Visa bulletin 2009

Visa numbers for the EB-1 category remained current throughout the year. In the EB-3 category, visa numbers became unavailable in May 2009 after remaining relatively unchanged for several months. Availability in this category opened up again in October 2009. The most change occurred in the EB-2 category.  At the beginning of 2009, cut off dates were set at July 8, 2004 for mainland Chinese nationals and July 1, 2003 for Indian nationals. In June 2009, visa numbers for Indian nationals applying in the EB-2 category retrogressed back to January 1, 2000. Then, in July 2009, visa numbers for mainland Chinese nationals applying in the EB-2 category also retrogressed to January 1, 2000. This retrogression was short lived. In August 2009, numbers for both mainland Chinese and Indian nationals applying in the EB-2 category moved forward to October 1, 2003. The EB-2 category progressed again in the months following, ending the year at April 1, 2005 for mainland Chinese nationals and January 22, 2005 for Indian nationals. 

Implications of this: It is typical for the EB-1 category to remain current throughout the year as applicants can elect for premium processing. Furthermore, the requirements for this category are much more stringent than the other two. It is also fairly common for the EB-3 category to become unavailable due to the fact that more people qualify for this category, resulting in a large volume of applications. For the EB-2 category, the sudden five year retrogression was very surprising. 

Conclusion

This year has brought many new developments to immigration for the benefit of applicants and the community as a whole.

Our firm received over 430 NIW, 210 EB-1, 300 H-1B, and hundreds of I-485 approvals in 2009. We would like to extend a warm greeting to the USCIS officers who worked tirelessly this year to evaluate our cases and improve their administrative procedures. With USCIS’ service improvements such as faster processing, re-implementation of premium processing, the launch of a new website, etc., our firm and our clients benefited tremendously.

We are excited to see what new developments arise next year. Finally, we would like to extend our warmest greetings to our clients who have supported and trusted us. May you and your family have a wonderful New Year! We hope that your American dreams come true in 2010!