August 2007

Posted on: August 27th, 2007
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August 3, 2007

Openers

Dear Readers:

This week a low level federal district court ruling on a set of municipal ordinances in a little Pennsylvania town may have sent shockwaves acrossAmerica . A few years ago the town of Hazleton , Pennsylvania made headlines when it decided to take on the federal government and implements its own set of laws to fight illegal immigration.

Hazleton ’s aggressively anti-immigrant mayor pushed through measures to take the business licenses away from companies hiring undocumented immigrants and barring landlords from renting apartments to the undocumented.

Mr. Mayor created a sensation and was interviewed by many reporters (even 60 Minutes!). The Hazleton gambit was repeated by cities and states around the country in response to four years of Congress yelling about immigration, but not actually dealing with the problem.

And now a district court judge says the party is over. Unfortunately forHazleton (and Farmer’s Branch, and the States of Arizona, Tennessee ,Georgia , and a lot of other places), the Constitution has a concept called “preemption” that forbids states from usurping Congress’ powers. IRCA, the 1986 Immigration Act, prohibits states from enforcing laws against hiring undocumented immigrants. And the undocumented are protected by the Constitution’s due process protections.

While the Hazleton case will likely be appealed, the odds of the ordinances being reinstated are probably not great. And the message sent by the court in the Hazleton case is certainly going to resonate as these laws are considered (and re-considered). Plaintiffs around the country are no doubt gearing up to challenge them all.

And the message to Congress should be even clearer. These laws were passed because of the legislature’s nonfeasance. The Congress has a responsibility to create an immigration system that actually functions with a secure border and a workable system to sponsor family members and workers for visas.

*****

In firm news, I wrote an opinion piece for USA Today on the subject of physician immigration that ran this past Tuesday athttp://blogs.usatoday.com/oped/2007/07/us-savior-forei.html?csp=34. I received an unexpected reply letter to the editor than none other than President Jimmy Carter (see his letter athttp://blogs.usatoday.com/oped/2007/08/global-health-c.html?csp=34). I’ve responded to President Carter’s comments on my ILW.com blog athttp://blogs.ilw.com/gregsiskind/2007/08/president-carte.html.

*****

Finally, as always, if you are interested in becoming a Siskind Susser Bland client, please feel welcome to email me at gsiskind@visalaw.com or contact us at 800-748-3819 to arrange for a telephone or in person consultation with one of our lawyers.

Regards,

Greg Siskind

The ABC’s of Immigration: H-3 Visas for Trainees

What is an H-3 nonimmigrant visa?

The H-3 nonimmigrant visa category is designed to allow foreign nationals to come to the US to receive training in many different activities. Unlike the H-1B category, the H-3 is not a dual-intent visa, so the beneficiary cannot be pursuing avenues toward permanent residency.

What type of training must I have to be eligible for an H-3?

The regulations allow for training in “any field of endeavor.” The regulations give examples of agriculture, commerce, communications, finance, government, transportation, the professions, as well as purely industrial areas. The only sort of training that is specifically excluded is graduate medical training. Nurses may, in some circumstances, receive training in theUS in H-3 status, and foreign medical students on school vacation can participate in externships at US hospitals. While the category initially appears very appealing, it is subject to many detailed requirements and limitations that render it less useful. Indeed, about only 3000 H-3 visas are issued each year. The category underwent many substantive changes in 1990, when the following requirements were imposed on training programs:

  • The training must not be available in the alien’s home country
  • The alien must not be placed in a position which is part of the normal operation of business which would ordinarily be filled by a US worker
  • The alien must not be productively employed unless such employment is “incidental and necessary” to the training
  • The training must benefit the alien in pursuit of employment outside theUS

There are also eight restrictions on training programs, which are essentially designed to ensure they meet the above listed requirements. Under these restrictions, a training program will not be approved if:

  • It would go beyond training to productive employment with the alien acting as part of the petitioner’s regular staff
  • It is not described in terms of a fixed schedule
  • There are no stated objectives
  • There is no method by which to evaluate the training
  • It is incompatible with the petitioner’s other business
  • The proposed training cannot be accomplished by the petitioner
  • It will teach skills the alien already possesses or will not be able to use in employment outside the US
  • It is being used to extend the training of a former student who has used their maximum period of optional practical training. (Seehttp://www.visalaw.com/03jan4/2jan403.html for details on optional practical training)

What are the risks of being denied an H-3?

There are numerous aspects of the H-3 application that must be carefully considered, or the petition risks denials. First among these is that there must be an existing and structured training program. The best way to show this is to show that training has previously been provided to aliens. In the alternative, this requirement can be satisfied by the submission of formal training materials, such as books, a syllabus and a planned curriculum.

The training cannot be provided as a prelude to eventual employment with the petitioner in the US . Rather, the purpose of the training must be to enable the alien to pursue a career outside of the US , a career that can by with the US based employer. Generally USCIS requires a detailed description of the position the alien intends to pursue. However, there are situations in which this need not be shown. For example, it is not uncommon for a company to provide training in order to create a potential ally in the overseas market. Such a purpose of training is acceptable, but must be explained to USCIS.

While the statute creating the H-3 category says only that the training shall not be “designed primarily to provide productive employment,” USCIS in effect considers any productive employment reason to deny the petition. USCIS will determine whether there is productive employment by looking at how much time the alien spends in on the job training. However, on the job training is acceptable, so long as the position held by the alien would not exist without the alien – that is, the alien is not filling a job that would otherwise be held by a US worker.

One of the requirements to obtain an H-3 visa is that the training the alien will receive in the US must not be available in their home country. USCIS uses this requirement in two ways to create grounds for denying an application. First, it broadly reads the type of training involved, making it difficult to provide training in US techniques in fields where training is available in other countries. Second, USCIS is of the opinion that the more a petitioner can show the employment is not available in the alien’s home country, the less likely it is that the alien will use the training to pursue employment there, which a ground for denying the application. This slippery logic places petitioners in a Catch-22 situation – face denial of the petition because the training is available in the alien’s home country, or face denial because the alien is receiving training they cannot use in their home country. This may be one of the primary reasons there are only 3000 H-3 visas issued annually.

When training is sought in an area in which the alien already has ability, USCIS will closely scrutinize the application to ensure the visa is not being used to provide the alien with productive employment. This also creates difficulties for petitioners – the alien must be prepared for the training, as through an educational program, but cannot be too proficient – either under- or over-preparedness can result in a denial.

What type of exception is there for Special Education trainees?

Since 1990, there has been an exception from the requirements of H-3 training programs for training in educating children with physical, mental or emotional disabilities. The only requirements are that the petition be filed by a facility with a professionally trained staff and “a structured program for providing education to children with disabilities, and for providing hands-on experience to participants in the special education exchange visitor program.” The beneficiary must already hold or be about to finish a degree in special education, or have experience in caring for disabled children. There is an annual limit of 50 such visas available annually.

How do I apply for an H-3 visa?

Applying for an H-3 visa is much like applying for any other visa in the H category. The application is made on Form I-129, which is then submitted to the appropriate regional service center. The application must also include evidence that will allow USCIS to determine whether the training program meets the four requirements. Typically this is done in the form of a statement from the sponsor of the training program. This statement must include the following:

  • A description of the training program, outlining the number of hours spent in classroom or on-the-job training
  • The amount of time that will be spent in productive employment
  • The employment abroad for which US training will prepare the alien, and why the alien must receive this training in the US
  • The amount and source of the alien’s compensation, and what, if any, benefit the petitioner will receive

If the petition is approved, the alien will receive an H-3 visa. This maximum period of admission in H-3 status is two years. If the visa is approved for a shorter period, it may be extended in increments of up to one year, but an alien is not permitted to remain in H-3 status for more than two years.

Qualifying family members (spouses and unmarried children under 21) accompanying the H-3 alien are given the H-4 classification.

If the training undergoes a substantial change from that authorized, a new petition must be filed. Otherwise, if the alien continues to participate in the training program, they are deemed to have violated their status and are deportable.

Ask Visalaw.com

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q – What forms should one fill out if I and my brother no longer wish to sponsor an immigrant?

A – There is no form. You would send a letter to USCIS requesting a revocation of your sponsorship. Note, however, that the petitioner is required to fill out an affidavit of support when the case becomes current so if you do nothing, the beneficiary is going to have a problem anyway.

*****

Q – Is there a way for a J-2 visa holder to work in the United States ?

A – Yes. J-2s are entitled to apply for employment authorization. You should check with the office at your spouse’s employer that handles the J-1s and they should be able to assist in filing the I-765 petition.

*****

Q – My child is 16 years old. His father became a naturalized American citizen more than more than 5 years ago. My child born outside the US and has lived with me since then. Can he benefit of Child Citizenship Act filling the form N-600K?

A – The child must be in the legal and physical custody of the US citizen parent. Joint custody is sufficient. Also, the US citizen parent must be the one to file the N-600K.

*****

Q – I was married to my wife who is a US citizen. She applied for a K-3 Visa for me as well as an I-130 so I can come to the US while INS finish the i-130. After approving the K-3 Visa, I came to the US on October 3rd 2003. I applied to adjust my status after my coming to the US and I was approved the Permenant residecy on January 2005. On October 2007 I will be in the US for 3 years minus 90 days as a permenant resident. Can I apply for naturalization in October 2007? or I have to wait whole 3 years since I became a permenant resident?

A – You should be able to apply up to 90 days ahead of your third anniversary based on what you’re describing.

*****

Q – My sister (who is widowed) and her 2 children were petitioned by her parents who are legal residents. Her parents have continuously resided in theU.S. for over 5 years and can now apply for citizenship. If they become citizens, what impact, if any will this have on my sister’s petition? Do the parents file a new petition?

A – Fortunately, there is no need to file a new application once the citizenship application is approved and your wife will get credit in the new category for her original filing date. This is called “automatic conversion.” You’ll want to keep an eye on the Visa Bulletin and when the Family First preference category is current based on her original priority date, you’ll need to notify the National Visa Center that the parents are now citizens and the case is ready to go forward.

Border and Enforcement News

According to The Caller Times of Corpus Christi , Customs and Border Protection Agents found 20 undocumented immigrants inside a tractor trailer Tuesday at a Falfurrias, Texas checkpoint.

Agents stopped the tractor trailer to check the driver’s citizenship shortly after midnight, said Senior Patrol Agent Camilo Garcia. A border protection dog alerted agents to the trailer where authorities found 20 people ranging in age from 18 to 40 stuffed inside on metal crates holding what appeared to be empty punching bags, Garcia said. There was no ventilation or air conditioning in the trailer, he said.

*****

A press release from the USCIS reports that four people were indicted for employing undocumented immigrants at their Maryland-area restaurant, and for money laundering.

Francisco Carlos Solano, 55, and his wife, Ines Hoyos-Solano, 59, both of Germantown, along with Mr. Solano’s sister, Consuelo Solano, 69, of Arlington, and his brother, Juan Faustino Solano, 57, of Kensington, were indicted in U.S. District Court in Maryland.

“These employers are alleged to have lined their pockets with millions of dollars and gained an unfair advantage over their competitors by systematically exploiting illegal aliens and paying them under the table,” U.S. Attorney Rod J. Rosenstein said.

The Washington Times reported that a search of two homes owned by Mr. Solano and his wife turned up $3.7 million in cash and jewelry hidden in several places, Mr. Dinkins said.

“This is the problem if you are running an illegal business,” he said. “You can only use but so much cash, but you still have to pay for your mortgage or your car note.”

News from the Courts

Garcia v. Lawyer’s Discipline

The Texas Court of Appeals (Court) recently heard arguments concerning attorney misconduct in immigration law. The Commission for Lawyer Discipline (Commission) brought a disciplinary action against a Texas-licensed attorney for violations of the Texas Disciplinary Rules of Professional Conduct, including Rules 5.04(a), 5.04(b), 5.05(b), and 7.01(a). The District Court awarded partial summary judgment to the Commission for Rules 5.04(a), 5.05(b), and 7.01(a), while awarding partial summary judgment to the attorney on Rule 5.04(b). On appeal, the Court affirmed.

Texas lawyer Raul Garcia worked with Cristo Vive, Christian Social Services, Inc., a nonprofit organization that offered individuals help with immigration-related matters, some of which came under the statutory definition of the practice of law. See Tex. Gov’t Code Ann. § 81.101(a). Garcia charged clients legal fees, and was eventually targeted by the Unauthorized Practice of Law Committee (UPLC). Cristo Vive entered into an agreement with the UPLC, in which all “agents, officers, directors, servants, employees, successors, and assigns” were enjoined from engaging in immigration legal services, except to the extent that such agreement would violate 8 C.F.R. § 292.2, or to the extent that Cristo Vive would perform such services under the direct supervision of a Texas licensed attorney. Afterwards, Garcia and Cristo Vive executed an agreement in which Garcia would serve as Cristo Vive’s “in house attorney,” supervising all legal services the organization offered. Garcia continued charging clients of Cristo Vive, collecting a salary of approximately $50,000 in fees not related to the types of services he provided or the number of clients he counseled.

In June 2003, the Commission filed a disciplinary proceeding against Garcia alleging violations of the following provisions of the Texas Disciplinary Rules of Professional Conduct: 5.04(a) (fee-splitting with a non-lawyer); 5.04(b) (forming a partnership with a non-lawyer); 5.05(b) (assisting a person who is not a member of the state bar in committing UPL); 7.01(a) (practicing in private practice under a trade name). The Commission moved for summary judgment that Garcia violated each of these rules, and in response, Garcia cross-motioned for summary judgment as well. The District Court awarded summary judgment in part to both parties, as well as a public reprimand of Garcia with costs.

On appeal, the Court analyzed each of the Texas Disciplinary Rules of Professional Conduct. First, the Court discussed Rule 5.05(b), which makes a violation of any lawyer to assist a non-lawyer . The Court found that this prohibition against assisting any unauthorized practice of law (UPL), as well as the underlying ban on UPL itself, is rooted in a need to protect individuals and the public from mistakes of those who are not trained in the legal profession, and are not subject to judicially imposed discipline. See Tex. Disciplinary R. Prof’l Conduct 5.05 cmt. 1. Garcia argued that his work with Cristo Vive did not violate the agreement between Cristo Vive and the UPLC because the agreement did not extend to any services that Cristo Vive offered under the supervision of a Texas attorney. The Court held that the lower court did not err in awarding summary judgment on this rule because Garcia was unable to raise any issue of fact as to this defense. The Court explains that Garcia cannot use collateral estoppel as a defense because the issue of whether or not his involvement with Cristo Vive falls under an exception to the Cristo Vive-UPLC agreement has not been fully and fairly litigated.

In reviewing Rule 5.04(a), the Rule against fee-splitting, the Court again found no error in the lower court’s decision. The Court found that Garcia’s salary came from a “pool” of funds collected by Cristo Vive’s clients, the same pool of funds that the organization’s founder also collected a salary. Because Garcia’s salary was not solely derived from Cristo Vive’s clients’ legal fees, there is a violation of this rule.

Moving to Rule 7.01(a), a violation for practicing under a trade name, the Court notes that this rule is aimed to protect the public by preventing lawyers from misrepresenting their identity by using other lawyer’s names, etc. The Court held that Garcia had used Cristo Vive’s name in representing private clients. The Court explained that the Commission had presented ample evidence to support this conclusion, including Garcia’s using Cristo Vive’s letterhead in correspondence to the INS, in which Garcia stated that he “represented” such “clients.” Garcia argued that the Rule 7.01(a) did not apply to him because he was not in private practice. The Court draws a distinction here, that private practice is opposed to lawyers who work in a government capacity, protecting the public’s interest. Therefore, the term “private practice,” as used in this rule, is meant to refer to attorneys who represent private, third-party individuals.

Government Processing Times

There are new processing times for the following service centers:

Vermont (7/18/2007): http://www.visalaw.com/vermont.html

California 7/18/2007): http://www.visalaw.com/california.html

Missouri (7/18/2007): http://www.visalaw.com/missouri.html

Nebraska (7/18/2007): http://www.visalaw.com/nebraska.html

Texas (7/18/2007): http://www.visalaw.com/texas.html

News Bytes

Starting this week, New Haven , Connecticut will begin offering municipal identification cards to undocumented immigrants, which will allow access to city services such as libraries and a chance to open bank accounts. According to Reuters, the validation attempt by the city is the first program of its kind in the US . New haven officials approved the program last month in a 25 to 1 vote.

Kica Matos, who administers the program for New Haven , said undocumented immigrants are often targeted by thieves and are robbed because they carry cash, a result of not being able to open a bank account. “Part of the reason they can’t open bank accounts is because they don’t have forms of identification that were valid,” she said. Matos confirmed that two area banks had already agreed to accept the new city car as legitimate identification sufficient for opening an account.

The new ID, Matos added, does not easily identify a person as an undocumented immigrant. “This is the last thing that we want to have happen,” she said. The card was created with several features to appeal to all residents, including a debit component and access to city services.

Officials in several cities, including New York and San Francisco have expressed interest in starting similar programs, according to Matos.

*****

Last week, Bush administration officials acknowledged that there have been significant delays in issuing US travel visas to Iraqis. According to the New York Times, as of June 30, the United States had admitted 69 locally employed Iraqis on “special immigrant visa” status this year, with 93 more cases pending. But that status, as defined by Congress, can be applied only to interpreters and translators, which excludes most Iraqis, from drivers to soldiers.

Iraqis not eligible for the special immigrant visas have been left to try to get to the US through a “refugee” category. The office of the UN High Commissioner for Refugees has referred 8,295 Iraqis who were local employed by Americans to the US for processing, but as of July 23, the Department of Homeland Security had interviewed only 2,368 of them.

“The tie-up is Homeland Security and vetting,” said James Zogby, head of the Arab-American Institute. “They’re arguing that working for the U.S. is one thing, trusting them over here is another.”

Since the US invasion of Iraq , the United Nations estimates that some two million Iraqis have fled the country; last month, 60,000 more fled Iraq .

International Roundup

Spain has offered Honduras a deal in which Madrid will admit a certain number of Honduran immigrants based on the rising demand of the Spanish labor market. Expatica News reports that the governments of Spain andHonduras have agreed to an exchange of Spanish investments in Hondurasand more Hondurans to support Spain ’s labor needs.

As of June, Spanish deputy prime minister Maria Teresa Fernandez de la Vega said that there were 5,098 Hondurans living in Spain, and that the influx of more Honduran nationals would increased at designated times of increased labor in Spain.

*****

The Inquierer of the Philippines reports that the Bureau of Immigration has begun a nationwide sweep of organizations that create and distribute fake travel documents after a number of Filipino travelers attempting to leave the country with the false documents were arrested at the Ninoy AquinoInternational Airport .

Immigration Commissioner Marcelino Libanan said he has ordered BI agents at the airport to check the travel papers of all travelers and to identify members of the criminal organizations by questioning those caught with fake documents. “These passport and visa fraud syndicates have been plying their nefarious activities for so long and preying on ordinary people who, for economic reasons, are enticed to carry spurious documents in order to travel and search for greener pastures abroad,” Libanan said.

Legislative Update

A federal judge in Pennsylvania struck down an ordinance enacted by the City of Hazelton to prohibit undocumented immigrants from working or renting homes there, according to the New York Times. This marks the most resonant legal decision to affect U.S. cities who are cracking down on undocumented immigration.

Judge James Munley of Federal District court ruled that ordinances first passed last July by the Hazelton City Council interfered with federal law, which regulates immigration, and violated the due process rights of employers, landlords and illegal immigrants. The decision comes as a shock to Hazelton’s mayor, Louis Barletta, who vowed last year to make the city “one of the toughest places in the United States ” for undocumented immigrants.

“I will not sit back because the federal government has refused to do its job,” Mr. Barletta said at a news conference on the steps of City Hall. Barletta says he plans to appeal the ruling.

In his decision, Judge Munley emphasized that undocumented immigrants had the same civil rights as legal immigrants and citizens: “Hazelton, in its zeal to control the presence of a group deemed undesirable, violated the rights of such people, as well as others within the community.”

Notes from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

  • Immigrant of the Day: Christiane Amanpour – Journalist
  • President Carter Responds to My Op-Ed Piece in USA Today
  • Boycott Targets Anti-Immigrant Talk radio
  • Jan Pederson: October Visa Bulletin Expected to Bring Mixed News
  • SSN “No Match” Rule’s Release Imminent
  • John Edwards Weighs in on Favoring H-1Bs

Visalaw.Com Blog

  • My USA Today Column – US Savior: Foreign Doctors
  • USCIS Reminds Hondurans and Nicaraguans to File TPS Applications
  • Consulates to Crack Down on Drunk Driving Arrests
  • Arizona Employers Suing over Law Enforcement Law

Visalaw Fashion, Sports, & Entertainment

  • ABA and SSB Attorneys to Represent Seminar on Sports and Entertainment Immigration
  • Russian Tennis Player Finally Gets Visa

Visalaw Health Blog

  • Cuban Doctors Defecting
  • Schumer Offers Nurse Green Card Bill Today
  • Physician Shortage Brings Misery to Upstate NY
  • Asia Times: The Terror of State Health Care
  • AP: Shortage of Doctors Affecting Rural Areas

Visalaw International Blog

  • Canada : Sergio Karas Elected Chair of the Ontario Bar Association Citizenship and Immigration Section
  • Visalaw International Lawyers Attend ABA Conference
  • Canada : Sergio Karas Writes About Border Security and Privacy
  • Sergio Karas and Greg Siskind Co-Author Article on Work Visas forChina

Application Fees to Sharply Rise This Month

A reminder to readers that beginning this week, dozens of application fees have gone up, with some going up as much as three times the prior amount. Hispanic news organization Telemundo reported in a story, that the new fees will leave many immigrants facing a large financial burden for legal entry. All together, 39 fees will rise an average of 66 percent, with some of the largest increases being for the most basic documents immigrants seek. Most notably, the fee to apply for a green card, establishing legal residence in the United States , will almost triple, from $395 to $1,010. Note that because of the Visa Bulletin mess, the increased fees for adjustment, employment authorization and travel documents have been delayed until the middle of this month.

The increases are expected to raise an extra $1.1 billion a year for the UCSIS, which is required to cover its costs with the fees it collects from the hundreds of thousands who seek residency and citizenship each year. “We need the money,” USCIS Director Emilio Gonzalez said. “To do nothing is to invite organizational disaster, because we are just not covering the cost of doing business.”

The series of fee increases have met with widespread criticism. Some immigration activists have said that the higher fees would be a permanent obstacle for many immigrants, many of whom take minimum-wage day labor jobs paying $5.15 an hour. They have calculated that a worker would have to save every penny he or she earned for five weeks to simply apply for a green card.

Among the most vocal of the price hike is the National Association of Latino Elected Officials, who say will “put the dream of U.S. citizenship beyond the reach of many of our nation’s newcomers.” With regards to the USCIS’ financial woes, the organization acknowledged the fiscal challenges, but countered that “placing the full costs of these investments on the back of hardworking newcomers is driving fees to a level that immigrants simply cannot afford.

According to the Associated Press, critics of the fee increase extend to Capitol Hill, who believe that application fees go to pay USCIS’ law enforcement, which legal applicants should not be responsible for. Sen. Barack Obama and Rep. Luis Gutierrez, both D-Ill., have introduced legislation to lessen the burden by shifting application fees to the federal budget. Sen. Edward Kennedy, D-Mass., chairman of the Judiciary subcommittee on immigration, first criticized the fee hikes in January, saying they would “price the American dream out of reach for qualified immigrants.”

The criticism extends beyond activists and politicians; business groups are expressing concern over the pricing policy. Last month the Trucking Industry Defense Association particularly had issue over the higher fees for waivers allowing foreigners with criminal records into the country on business. According to their statement, at $545, the new fee will sharply raise costs for commercial cross-border trucking and shipping and that these costs would inevitably be passed on to consumers.

In a related development, Representative Zoe Lofgren, the Democratic Chair of the House Immigration Subcommittee introduced a bill to reverse the increase.

State Department Visa Bulletin for August 2007

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during February. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by November 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

2.Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First : Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third : Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth : Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First : Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second : Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third : Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Schedule A Workers : Employment First, Second, and Third preference Schedule A applicants are entitled to up to 50,000 “recaptured” numbers.

Fourth : Certain Special Immigrants: 7.1% of the worldwide level.

Fifth : Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
1st 08AUG1 08AUG1 08AUG1 01JAN91 01MAY92
2A 22JUL02 22JUL02 22JUL02 01AUG01 22JUL02
2B 08APR98 08APR98 08APR98 08MAR92 22OCT96
3rd 01OCT99 01OCT99 01OCT99 08FEB88 01JAN85
4th 01NOV96 22JUL96 01MAR96 01FEB93 01MAY85

*NOTE: For November, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01NOV01. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01NOV01 and earlier than 22JUL02. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

All
Chargeability
Areas
Except
Those
Listed
CHINA-
mainland born
INDIA MEXICO PHILIPPINES
Employment
-Based
1st U U U U U
2nd U U U U U
3rd U U U U U
Other
Workers
U U U U U
4th U U U U U
Certain Religious Workers U U U U U
Iraqi & Afghani Translators U U U U U
5th U U U U U
Targeted Employment Areas/
Regional Centers
U U U U U

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105 – 139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2007 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For August, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except:

Egypt:
22,600
Ethiopia
16,00
Nigeria
18,700

ASIA CURRENT Except:Bangladesh: 8,150
EUROPE CURRENT Except:Ukraine
13,700
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2007 program ends as of September 30, 2007. DV visas may not be issued to DV-2007 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2007 principals are only entitled to derivative DV status until September 30, 2007. DV visa availability through the very end of FY-2007 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For December, immigrant numbers in the DV category are available to qualified DV-2007 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except:
Egypt:
22,600
Ethiopia 16,000
Nigeria 20,700
ASIA CURRENT Except: Bangladesh 8,150
EUROPE CURRENT Except:
Ukraine
13,700
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT

D. JULY EMPLOYMENT-BASED VISA ABILITY

After consulting with Citizenship and Immigration Services, the Visa Office advises readers that that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn.

E. AUGUST EMPLOYMENT-BASED VISA ABILITY

All Employment-based preference categories are “Unavailable” for August. At this time, it is uncertain whether any numbers will be returned and will be reallocated at a future date. Until informed otherwise, all readers should assume that the categories will remain unavailable until October, which is the beginning of the new fiscal year.

F. MEXICO FAMILY FOURTH PREFERENCE RETROGRESSION

There has been a significant increase in number use in the Mexico Family Fourth preference category. As a result, it has been necessary to retrogress this cut-off date in an effort to hold number use within the annual numerical limit.

G. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:
http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address :

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)