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Immigration Newsletter
November 2012 - Volume 4, Issue 5
Common Acronyms
AILA: American Immigration Lawyers Association

Board of Alien Labor Certification Appeals

Department of Labor


DOS: Department of State


USCIS: U.S. Citizenship & Immigration Services   

Ross Silverman LLP
59 Temple Place, Suite 605
Boston, MA  02111
Phone: (617) 542-5111
Fax: (617) 542-2331
Attorneys at RS

Christine C. Gannon
Marianne Staniunas

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Our periodic newsletters are meant to provide you with timely information regarding immigration issues which may affect your company and/or employees.  If you have any questions regarding any of these issues, please do not hesitate to contact the attorney with whom you work for more information.



Reminder: Holiday Season Brings Delays at Consulates


As we near the holiday season, we'd like to take this opportunity to remind nonimmigrants who will be traveling abroad and obtaining new visa stamps in their passports to keep in mind that the winter months bring delays at many U.S. Consulates and Embassies around the world. Many Consulates see an increase in visa applications towards the end of the year as individuals apply to obtain their visa stamps during holiday trips abroad. Therefore, we recommend that visa appointments be scheduled well in advance of any trip, to ensure that an appointment will be available. We also recommend that the appointment be scheduled at the beginning of the trip to allow extra time in case of processing delays.


Updates on Immigrant Visa Availability


The State Department's monthly visa bulletin announces immigrant visa availability for the coming month, and occasionally gives predictions regarding what we can expect in the months ahead in terms of priority date movement. Some predictions have been provided in the December Visa Bulletin, which we'd like to share with you at this time.

  • EB-1: The Employment-Based First preference category is anticipated to remain current for the foreseeable future.  
  • EB-2 worldwide: The EB-2 worldwide category (i.e. all applicants except those from India and China) retrogressed at the end of Fiscal Year 2012 (July to September), and the State Department (DOS) previously indicated that this category could retrogress again towards the end of FY 2013. However, for the time being, DOS anticipates that this category will remain current.
  • EB-2 China: DOS anticipates regular forward movement of priority dates by about 5 to 8 weeks per month.
  • EB-2 India: DOS does not anticipate forward movement in this category in the immediate future.
  • EB-3 Worldwide: Anticipated movement of 3 to 5 weeks per month.
  • EB-3 China: Anticipated movement of 1 to 2 months per month.
  • EB-3 India: Anticipated movement of up to 2 weeks per month.

IMPORTANT NOTE: These DOS predictions are based on information currently available regarding visa usage in the coming months, and could change at any time. This information should not be relied upon in decision-making with regard to an applicant's immigration situation.


As a reminder, when an individual's priority date is current, it means s/he may file an I-485 application for permanent residence, and any pending I-485 applications will be eligible to be adjudicated. If a priority date is retrogressed, applicants are not eligible to file I-485 applications, and any pending I-485 applications are not eligible to be adjudicated (though they will remain pending with USCIS for the duration of the priority date retrogression, and applicants remain eligible for extensions to work and travel authorization during this time).  


U.S. Embassy in India Announces New Visa Processing System


At the end of September, the U.S. Embassy in India implemented a new visa processing system throughout India that further streamlines visa appointment scheduling, fee payment procedures, and document delivery. Through a new website, applicants can obtain all of the necessary information on how to apply for a U.S. visa, including how to complete required forms, gather supporting documentation, schedule an interview appointment, and track the progress of their application. The new process also streamlines the delivery of documents, whereby materials such as passports and visas will be delivered to designated pick-up locations throughout India. Applicants will be able to choose a pick-up location when they schedule their appointments, and will be notified of delivery via email or text message.


An important change under the new system is that first-time visa applicants will now have to make two appointments, likely on two separate days: one for fingerprint collection and one for a consular interview. Fingerprint collection will take place at an Offsite Facilitation Center (OFC) separate from the Embassy or Consulate prior to the visa interview. It is anticipated that most applicants will only need to submit their fingerprints once, and applicants who are renewing their visa may be able to skip the step entirely. Because this is a new process, all nonimmigrants traveling to India in the coming months are encouraged to contact the Embassy or Consulate directly to confirm whether a separate fingerprint appointment at an OFC is required.


Recent PERM Trends

  • Increased Scrutiny of Employer Recruitment Practices

As part of the PERM labor certification process, employers are required to test the job market to ensure that there are no U.S. workers who are qualified, willing and able to fill the offered position. Increasingly, the Department of Labor (DOL) has been denying PERM cases where the certifying officer determined that there was a potentially-qualified applicant whom the employer did not properly investigate. In a string of decisions this year, the Board of Alien Labor Certification Appeals (BALCA) has upheld DOL's denial of various PERM cases on the grounds that the employer failed to meet its burden to properly investigate the qualifications of a U.S. worker applicant.


In the most recent case, BALCA reiterated that even if the applicant does not possess the exact experience required, an employer is under a duty to investigate if the applicant's resume demonstrates a broad range of experience, education, and training such that it is reasonably possible that he or she is qualified for the job. An employer is not required to interview every applicant, and when an applicant's resume reveals that he or she clearly lacks the minimum specified job requirements, the applicant may be rejected without an interview. However, the employer has the burden of establishing that based on the resume alone, there is no reasonable probability that the applicant is reasonably qualified to perform the job duties.


Due to the increased scrutiny of applicants by DOL, it is more important than ever that employers carefully evaluate resumes beyond whether the applicant meets the exact education or experience requirements of the position. Please consult with the attorney handling your case regarding specific questions and advice.  


  • New Challenges from DOL's Prevailing Wage Unit 

As many of our employment-based clients are aware, the DOL system for determining prevailing wages does not always correspond to real-world wage systems. Over the past few months, we have seen a new trend from DOL's Prevailing Wage Unit - it has begun issuing prevailing wage determinations which categorize a position as a "combination of occupations," when the position does not fall clearly into one occupational category. The result is that the prevailing wage issued ends up being higher than it would have been, had DOL assigned the position to a single occupational category (as it has in the past). Practitioners, including those at Ross Silverman, have attempted to challenge these determinations with the Prevailing Wage Unit without success, and BALCA has upheld this practice in recent decisions, so it seems likely that this practice will continue for the foreseeable future.


 The American Immigration Lawyers Association will continue to challenge the Prevailing Wage Unit's practice, making the argument that in many cases, the position in question merely includes responsibilities that fall within the broader scope of the occupational category. However, for the time being, we anticipate that where a position does not fall clearly into one of the occupational categories on which DOL relies, there is a significant risk that DOL will find a combination of occupations and will assign a higher prevailing wage. RS will continue to monitor this issue and advise clients who may be affected.


In the News: What's Happening at RS


We are happy to announce the following awards and recognition of our firm and our partners:

Upcoming Speaking Engagements & Events:

  • November 14, 2012: Heidi Snyder will be speaking at a Boston Bar Association brown bag lunch regarding PERM.
  • November 15, 2012: Howard Silverman will be speaking at a Boston Bar Association brown bag lunch regarding Lawyering in Immigration Court.
  • December 7, 2012: Howard Silverman will be presenting at the Boston Municipal Court Education Committee Conference at the Adams Courthouse regarding Immigration Consequences of Criminal Convictions.
  • December 12 - 13, 2012: Rhonda Tietjen will be speaking on a panel about the PERM process at the Massachusetts Continuing Legal Education (MCLE) Immigration Law Basics Conference in Boston, MA. Ellen Driver will be co-chairing Day 2 of the conference, which focuses on family-based immigration, naturalization, and removal proceedings.
  • January 10, 2012: Sharryn Ross will be speaking on a panel for an AILA webinar about degree equivalency.

Recently, Howard Silverman has also spoken at a number of events, including: a session sponsored by the Political Asylum/Immigration Representation (PAIR) Project for beneficiaries of Deferred Action for Childhood Arrivals; two training sessions for state court judges on Criminal Immigration Consequences, sponsored by the Massachusetts Bar Association; a seminar for Harvard University students about the state of U.S. naturalization policies and the challenges confronting lawmakers and immigrants; and a session at the Boston Immigration Court sponsored by the PAIR Project regarding Motions to Reopen.


This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.