Highlights

• Immigration Filings Post-Shutdown 

• Updates Regarding Consular Processing Post-DOMA

• FY2014 Visa Bulletin Predictions from DOS Chief Charles Oppenheim

Immigration Filings Post-Shutdown

In light of the U.S. federal government resuming operations, United States Citizenship and Immigration Services (USCIS) released a statement, noting if the H-1B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, provided the petitioner meets all other applicable requirements.

Additionally, the U.S. Department of Labor’s (DOL) iCert portal and PERM application filing have been restored as of October 18, 2013.  However, due to the backlog of cases that accrued during the 17-day government shutdown as well as the increase in traffic post-shutdown, both systems are operating slowly with reports of periodic crashes.  OFLC is working to fix these issues as quickly as possible.

DOL advised that it will be re-sending PERM verification questionnaires electronically for PERM cases for which questionnaires were not sent due to the shutdown.  For PERM applications where the automatic sponsorship survey needed to be submitted during the government shutdown period, DOL will provide an additional seven days to complete the survey.

Updates Regarding Consular Processing Post-DOMA

The American Immigration Lawyers Association (AILA) has recently posted written responses by David S. Newman, Director of the Office of Legal Affairs, Visa Services, Bureau of Consular Affairs at the U.S. Department of State, regarding changes to consular regulations since the U.S. Supreme Court’s June holding that the U.S. Defense of Marriage Act (DOMA) was unconstitutional.  Many of the questions posed by AILA addressed the problems that same-sex couples may encounter when applying for visas at consulates located within countries that discriminate against, or criminalize, homosexuality.

Concerning the safety of same-sex visa applicants when applying at consulates located in countries that discriminate against or criminalize homosexuality, Director Newman assures applicants that all consulate employees are trained in handling sensitive information and are required to attend yearly trainings.  Mr. Newman states that after the Supreme Court’s ruling on DOMA, consular offices were instructed to modify any procedures in which marriage was described as between “a man and a woman” or a “husband and a wife.”  Along those same lines, the Department of State has incorporated same-sex marriage cases into consular training courses for both consular officers and the locally employed staff.

Director Newman also addressed the problem of documentation, which may arise when applicants have been living in countries that criminalize homosexuality or consider same-sex relationships taboo.  In these countries, the applicants may not have the ability to ask family and friends for affidavits regarding their same-sex relationship.  Director Newman assures AILA that consular officers will be able to determine the validity of a relationship even when the more common documentation, such as photos or family affidavits, is unavailable.  Similarly, if obtaining any documents or records required by the consular application would cause hardship to the applicant, under 22 CFR 42.65(d), the consular officers have authority to allow the use of other evidence, provided the applicant can establish actual hardship in obtaining such documentation.

AILA also posed the question of whether civil unions will now be recognized as a valid relationship for immigration purposes.  Unfortunately, Director Newman stated that the U.S. Department of Homeland Security must provide further guidance upon that subject, and there is no definite answer yet.

FY2014 Visa Bulletin Predictions from DOS Chief Charles Oppenheim

Yesterday we reported important updates to visa category numbers, announced by Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, at the D.C. Chapter AILA Dinner.  Below is a recap of the major points Mr. Oppenheim delivered on Wednesday:

• EB-5 number use is expected to climb this year, meaning fewer pour-over visas going into the EB-1, EB-2, and EB-3 categories.

• F2A priority dates are on hold for the foreseeable future.  Oppenheim then added that Mexico’s date might retrogress.

• India-specific EB-2 priority date is expected to retrogress to late 2004/early 2005.

• Worldwide EB-2 priority date, however, is expected to stay the same.

• Worldwide EB-3 and China-specific EB-3 priority dates are expected to stay the same.

• 45% of all EB visas are used on primary applicants, where the remainder is used on dependents.