December 2011

Posted on: December 5th, 2011
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Siskind’s Immigration Bulletin – December 20, 2011

Published by Greg Siskind, partner at the Immigration Law Offices of Siskind Susser, P.C., Attorneys at Law; telephone: 800-748-3819, 901-682-6455; facsimile: 800- 684-1267 or 901-339-9604, e-mail: gsiskind@visalaw.com, WWW home page: http://www.visalaw.com.

Siskind Susser serves immigration clients throughout the world from its offices in the US and its affiliate offices across the world. To schedule a telephone or in-person consultation with the firm, go to http://www.visalaw.com/intake.html

Editor: Greg Siskind. Associate Editor: Juan Portillo. Contributors: Juan Portillo.

To receive a free e-mail subscription to Siskind’s Immigration Bulletin, fill out the
form at http://www.visalaw.com/subscribe2.html. To unsubscribe, send your request to visalaw-unsubscribe@topica.com

To subscribe to the free Siskind’s Immigration Professional Newsletter, go to

http://www.visalaw.com/sip-intro.html

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1. Openers

Dear Readers:

One of the few pieces of immigration legislation to pass the US House of Representatives over the last few years is HR 3012. The bill would phase out per country limitations for most employment-based green card applicants and also double the per country limit for family applicants. Under current law, a single country’s nationals can generally get no more than 7% of the allocated green cards in the family and employment preference categories. The limits have caused long backlogs for Indian and Chinese nationals in the employment categories and Mexicans in the family categories.

The bill passed the House by a 20 to 1 margin so it looked like smooth sailing. But it should not really be a surprise that the bill has stalled in the Senate. The Senate has rules that make it much easier to stop a bill rather than pass one. For example, a fast tracked bill (one that can go right to the floor for a vote rather than through the committee process) can be stopped if a single Senator places a hold on the bill. And most of you are probably familiar with the filibuster which allows 40 Senators of 100 to stop just about any bill even if it has been passed by committee.

Iowa Republican Senator Grassley, one of the most vocal anti-immigration members of Congress, has, in fact, placed a hold on the bill. Some are predicting that this is the end of the bill, but it more likely simply means it will take longer. One Senator can slow a bill down, but if there is broad support, it still can move. So 3012 is still worth watching. In this month’s issue we include a section by section summary of the bill.

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This past week the US Supreme Court issued a decision in an immigration case titled Judalang v. Holder. The case is one of only a handful of immigration cases the court will decide this year. It relates to a criminal deportation matter and will not affect that many, but the court’s decision is important as much for the general message sent to the Department of Homeland Security. This is the latest decision criticizing USCIS for issuing arbitrary and capricious policies. Whether the agency improves its track record for rulemaking is doubtful, but to the extent it encourages more individuals to challenge such rules and policies in the courts, this is good news.

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In firm news, I’ve been interviewed and/or quoted in three publications. Ars Technica reports on the floating incubator designed to help entrepreneurs start up their high tech businesses offshore. The Wall Street Journal includes a quote from me on the same subject. And Attorney at Work interviews me for its monthly Enterprising Lawyer feature. You can find links to these stories at www.visalaw.com/news.

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This is our last issue for 2011 and as we head in to the holiday season everyone at Siskind Susser would like to extend our best wishes to all of our readers. 2012 will hopefully be a year that is more prosperous and peaceful and one that will be happy for all of you.

*****

Regards, Greg Siskind

2. ABCs of Immigration Law: Q-1 Visas for International Cultural Exchange Visitors

What is a Q-1 Visa?

The Q-1 nonimmigrant visa is designed for foreign nationals who are coming to the US to participate in an international cultural exchange program. The Q-1 visa was created in 1990, mainly because of lobbying efforts by the Walt Disney Company and similar businesses. They feared that the J programs they were using would be revoked because their foreign employees were working in generally unskilled positions, even though they were participating in cultural exchanges. Under the Q-1 visa, the foreign national can engage in practical training and employment so long as they are also sharing the history, culture and traditions of their home country.

What are the requirements of a Q-1 visa?

The first requirement in obtaining a Q-1 visa is for the employer to obtain approval of their international cultural exchange program from the Attorney General. To obtain approval, the program must meet the following requirements:

  • It must take place in a school, museum, business, or similar location where the public, or at least the interested public, can be exposed to aspects of a foreign culture as part of a structured program;
  • The program must include a cultural component as an essential and integral part of the cultural visitor’s employment or training; and
  • The program cannot provide for employment or training independent of the cultural component.

Program approval is sought by filing Form I-129 with the Q Supplement. The application must be accompanied by documentation of the program. There must also be evidence that the employer has designated a management level employee to administer the program and act as a liaison to the USCIS. The application can be filed with either the USCIS Service Center with jurisdiction over the petitioner’s headquarters or the Service Center with jurisdiction over where the employee will be located.

The employer must also meet a number of other requirements. It must be engaged in the active conduct of business in the US. It must also attest that it will pay the foreign national the same wages it would pay a US worker in the area, as well as demonstrate that it has the financial ability to pay the offered wage, and that it will provide the same working conditions US workers in the area would have. However, there is no need to file the attestation with the Department of Labor.

How do I apply for a Q-1 Visa?

The application for Q-1 visa classification is made at the same time as the request for program designation. After the program is approved, however, subsequent applications can be made with only the copy of the original program approval. More than one person can be included on the same petition. Also, substitutions can be made during the program, but the new person’s period of stay is limited to the terms of the originally approved petition. A substitution does not need to be filed with the USCIS, but can be done by a letter to the consular office where the replacement will apply for a visa. The letter must provide all of the information on the foreign national listed below, and must include a copy of the original approval notice.

The person who will receive Q-1 status must meet the following requirements:

  • Be at least 18 years old;
  • Be qualified to perform the service of receive the type of training listed in the

    application; and

  • Be able to communicate with the US public about the cultural aspects of their home

country.

Also, applicants who have previously been granted Q-1 status must remain outside the US for one year before again being granted Q-1 status.

The petition must include the following information about each person to be given Q-1 status:

  • Date of birth;
  • Country of nationality;
  • Educational level;
  • The position, title and job description they will occupy; and
  • The wages offered.

If the cultural program involves multiple locations, a complete itinerary must be provided. The Q-1 program designation is approved either for the length of the program, or 15 months, whichever is shorter. The person is also given 30 days after the expiration of the visa in which to make travel plans for their departure from the US.

People in Q-1 status are allowed to apply for a change of status within the US. They can also, while remaining in Q-1 status, switch employers. However, the total stay in the US is still limited to 15 months.

Finally, while there is no derivative status for dependents of people in Q-1 status, the State Department Foreign Affairs Manual states that dependents should be granted B-2 visas for the duration of the Q-1 visa holder’s stay in the US, up to 12 months at one time.

3. Ask Visalaw.com

In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

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.

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1) QUESTION:

Can a spouse or child benefit from an approve immigrant petition where the primary beneficiary has died? My uncle, a U.S. citizen, filed an I-130 immigrant visa petition on behalf of my father. The petition was approved, but then my father passed away. The priority date for the petition has been reached on the Visa Bulletin. Can my mother now get an immigrant visa based on the petition?

ANSWER:

Unfortunately your mother cannot benefit from the petition filed by your uncle. When the primary beneficiary dies, the I-130 petition automatically becomes revoked. Any derivative beneficiaries to that petition are not eligible to receive visas based upon the revoked petition.

Unlike situations where the petitioner dies, there is no process to request a reinstatement of the petition for humanitarian reasons where the beneficiary dies.

2) QUESTION:

I am a Conditional Permanent Resident. My conditional residence expired in September. I have applied already to have the condition removed. Can I still work while waiting for my application to be adjudicated? Do I have to apply a separate work authorization card while waiting?

ANSWER:

When you filed the application to remove the condition from your residence, you received a Receipt Notice. That Receipt Notice should have a statement on it that it can be used as proof of your status, including your ability to travel and work authorization, for one year from the date it was issued. So you can work while waiting for your application to be adjudicated, and you do not need a separate work authorization. You just need to present that letter to your employer as proof of your authorization to work. If USCIS takes longer than a year to adjudicate your application, you can make an Infopass appointment with your local USCIS office, up to 30 days prior to the expiration of the year, and they will put a stamp in your passport which you can use as evidence of your status and work authorization.

4. Border and Enforcement News:

ICE Deports Man Who Killed Two During JFK Airport Hostage Standoff

U.S. Immigrations and Customs Enforcement (USCIS) announced that a former lawful permanent resident, who was once an enlisted member of the U.S. Navy, was deported to Panama. Luis Robinson, 61, a Panamanian national formerly of Somerset, N.J., was arrested and placed into Immigration and Customs Enforcement’s (ICE) Enforcement and Removal Operations (ERO) custody after being paroled from the New York State Department of Corrections. Robinson served 34 years in prison for two counts of 2nd degree murder that he committed during a 1977 hostage standoff at John F. Kennedy International Airport in New York. “Removing criminal aliens is a top priority for ICE’s Enforcement and Removal Operations,” said Michael Phillips, field office director for ICE ERO in Buffalo.
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Crackdown Resumes on Firms’ Illegal Hires

The Wall Street Journal reports that the Obama administration has extended its crackdown on employers of illegally present immigrants, notifying 500 companies across the nation in recent weeks that the government will inspect their hiring records. Companies can be fined, barred from competing for government contracts and be hit with criminal charges of knowingly employing illegally present workers and evading taxes. Since January 2009, Immigration and Customs Enforcement (ICE) has audited more than 5,909 employers suspected of hiring illegally present labor and imposed more than $72 million in sanctions. The audits also have their fare share of detractors. “The I-9 audits disrupt farmers and workers, but do nothing to move us towards the goal of a legal and stable work force,” said Dan Fazio, director of the Washington Farm Labor Association.

http://online.wsj.com/article/SB10001424052970203503204577038650374608774.html

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U.S. to Review Cases Seeking Deportations
The New York Times reports that the Department of Homeland Security began a review of all deportation cases before the immigration courts and started a nationwide training program for enforcement agents and prosecuting lawyers, with the goal of speeding deportations of convicted criminals and halting those of many illegally present immigrants with no criminal record. Central to the plan is giving more power to immigration agency lawyers to decide which deportation cases to press.

In the first stage of the court docket review, immigration agency lawyers will examine all new cases just arriving in immigration courts nationwide, with an eye on closing cases that are low-priority according to the memorandum Immigration and Customs Enforcement (ICE) director, John Morton, released in June. At the same time, immigrants identified as high priority will see their cases put onto an expedited calendar for judges to order their deportations, Homeland Security officials said.

In a second stage, the Department of Homeland Security and the Justice Department will start six-week pilot projects in the immigration courts in Baltimore and Denver, in which teams of immigration agency lawyers will comb through the current dockets of those courts. Immigrants who are deemed to qualify for prosecutorial discretion will have their cases closed, but not dismissed, officials said. The pilot projects will end Jan. 13, and then
officials will decide how to expand the program to all immigration courts nationwide early next year.

http://www.nytimes.com/2011/11/17/us/deportation-cases-of-illegal-immigrants-to-be- reviewed.html

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Honda Worker Cited Under Alabama Immigration Law

The Associated Press reports that a Japanese man temporarily working at Honda’s car factory in east Alabama became the second foreign auto worker charged under the state’s law on illegal immigration. The employee at Honda Manufacturing of Alabama in Talladega County received a ticket but wasn’t taken into custody. Republican lawmakers in Alabama cast doubt on whether the citation was actually made under the immigration law saying there is no instance or violation under the new law that calls for writing someone a ticket. A person who commented on the condition of anonymity said the man was ticketed at a routine roadblock set up by police even though he had a valid Japanese passport and an international driver’s license. State Homeland Security officials, who are monitoring enforcement of the law, said they were seeking details on the case.

http://www.cbsnews.com/8301-501363_162-57334087/apnewsbreak-honda-worker-cited- under-ala-law/

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5. News from the Courts:

Feds Sue to Block Utah Immigration Law

The Salt Lake Tribune reports that the U.S. Department of Justice filed a lawsuit claiming the Utah Legislature overstepped its authority when it passed a tough immigration law, arguing immigration enforcement is a federal duty. With the suit, Utah becomes the fourth state whose bid to crack down on illegal immigration has been challenged by the Justice Department. Utah Attorney General Mark Shurtleff said he has worked closely with the Justice Department and he had hoped it wouldn’t file the suit. But he said that Utah’s law is significantly different than the other laws that were challenged.

http://www.sltrib.com/sltrib/politics/52972971-90/497-attorney-bill-department.html.csp

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Federal Judge Strikes more of AL Law

The Dekalb County Times Journal (AL) reports that U.S. District Judge Myron Thompson ordered the state to stop denying mobile home permits to people who couldn’t provide proof of citizenship. The state’s immigration law prohibits any state agency from conducting business with illegally present immigrants and as a result state officials interpreted this to mean they could not provide yearly permits for mobile homes to individuals who could not prove citizenship. In the wake of Thompson’s ruling, residents will have a window to register their homes regardless of legal status.

http://times-journal.com/news/article_31dd3816-1a0f-11e1-8464-001cc4c002e0.html

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S.C. vs. Federal Battle over Immigration Law Goes to Court in December

The State (SC) reports that a hearing on a preliminary injunction against South Carolina’s immigration law has been scheduled for Dec. 19 in Charleston before U.S. District Judge Richard Gergel. The U.S. Department of Justice filed a lawsuit in October asking for an injunction to prevent the state’s immigration law from taking effect Jan. 1. S.C. Attorney General Alan Wilson filed a 265-page opposition to the injunction relying heavily on arguments used in a similar lawsuit in Alabama. The judge is expected to rule before the law’s start date, experts say.

http://www.thestate.com/2011/11/30/2063451/immigration-law-challenge-hearing.html

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6. News Bytes:

In Alabama, Calls for Revamping Immigration Law
The New York Times reports that an increasing number of Alabama state lawmakers say they are willing to consider changes to Alabama’s anti-immigration law in light of “unintended consequences.” “All of us realize we need to change it,” said Slade Blackwell, a Republican state senator. Because the law remains popular with eighty percent of Alabama residents, officials seeking changes must assert that any intended alterations will not dilute the law’s aim to deter illegal immigration. The most vocal criticism comes over “Section 30” which vaguely requires proof of immigration status for “any transaction between a person and the state or a political subdivision of the state.”

Defenders of the law say fears about the vagueness of this section are unfounded but many lawyers like Birmingham’s city attorney, Thomas Bentley, say the section could be interpreted to apply to “almost everything we do.” State Senator Scott Beason, a Republican who sponsored the law, rebuffed criticism, pointing out that “providing identification is a common practice when dealing with the state and many private entities.” He also added that he has long been open to “ironing out any administrative difficulties or ambiguities.”

http://www.nytimes.com/2011/11/17/us/in-alabama-calls-for-revamping-immigration- law.html?pagewanted=all*****

Gingrich Takes Big Risk Articulating Immigration Policy
Foxnews.com reports that Former House Speaker Newt Gingrich challenged rival Republican presidential candidates to refute his argument against mass deportations of illegally present immigrants. Gingrich warned against a policy that proposes deporting immigrants that have been in the country for 25 years, saying he would not “expel” those who had come to the United States illegally if it happened decades ago. He said long-residing illegally present immigrants shouldn’t become citizens, but neither should they be torn apart from their families. Presidential hopefuls Michele Bachmann, Mitt Romney, and Rick Perry took the opportunity to lash out against Gingrich, calling the stance a form of amnesty that attracts illegal immigration.

http://www.foxnews.com/politics/2011/11/23/gingrich-on-top-gop-polls-takes-big-risk- articulating-illegal-immigration/

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The Hill (DC) reports that Michele Bachmann, intent on differentiating herself from Republican presidential frontrunner Newt Gingrich, called for the deportation of all 11 million illegally present immigrants believed to reside in the U.S. in steps. Asked by radio host Laura Ingraham about an earlier statement she made differentiating between immigrants who had recently entered the country illegally from those with longstanding ties to the United States, Bachmann said she was never referring to legalization. “What I’m talking about is the order of deportation,” Bachmann replied. “It is almost impossible to move 11 million illegal immigrants overnight. You do it in steps.”

http://thehill.com/homenews/campaign/195597-bachmann-deport-all-11-million-illegal- immigrants-in-steps

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AZ Sherriff Endorses TX Governor

The Texas Tribune reports that controversial Arizona Sherriff Joe Arpaio announced his endorsement of Republican presidential candidate Rick Perry. Sherriff Arpaio joined Perry on the campaign trail in an effort to shore up support from Conservatives who cooled on Perry after rivals charged him with being soft on immigration. Perry coupled the endorsement from Arpaio with a promise that, as president, he’ll detain and deport anyone who crosses the border illegally.

http://www.texastribune.org/texas-politics/2012-presidential-election/perry-get-nod- americas-toughest-sheriff/

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Mandatory Wage Hikes for Immigrant Workers Delayed

The Town Talk (VA) reports that federal government-mandated wage increases for seasonal immigrant workers have been delayed until Jan. 1 after President Barack Obama signed appropriations legislation that prevents the U.S. Labor Department from spending money needed to implement and administer the increases. In a Nov. 2 hearing, businesses that use seasonal foreign labor asked U.S. District Judge Dee Drell in Alexandria, Virginia to invalidate the way Labor Department officials came up with the new rates, or at least postpone the Nov. 30 implementation. The businesses fear the implementation, which raises some hourly wages as much as 100 percent, will hurt bottom lines and drive some companies out of business. Judge Drell has not yet ruled on the request and government and union attorneys continue to fight the lawsuit.

http://www.thetowntalk.com/article/20111123/NEWS01/111230331/Mandatory-wage- hikes-immigrant-workers-delayedBachmann: Deport all 11 Million Illegally Present Immigrants, In Steps
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Newt Gingrich Signs Border Fence Pledge during Iowa Swing
The Los Angeles Times reports that Republican presidential contender Newt Gingrich signed a pledge to build a double fence along the U.S.-Mexico border by the end of 2013. The
former House speaker signed the pledge, which is being promoted by a North Carolina group, Americans for Securing the Border, while on a campaign visit to Iowa.

http://articles.latimes.com/2011/dec/01/news/la-pn-gingrich-fence-20111201

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7. Washington Watch:

Seeking Sympathetic Cases to Test Obama’s Deportation Policy

The Associated Press reports that Democratic Illinois Reps. Luis Gutierrez and Jan Schakowsky are spearheading an effort to recruit people into testing the Obama Administration’s new deportation policy. Since Immigration and Customs Enforcement (ICE) announced in a memo in June that deportations would focus on immigrants who have committed crimes, the congressmen have aggressively sought cases of others with no criminal backgrounds on the verge of deportation and taken them to ICE instead of waiting for a promised review of 300,000 cases pending in federal immigration courts. In the months since the memo, immigration attorneys, judges and advocates have said there’s little consistency to how the policy is applied, if it’s applied at all. “We want to help navigate what remains right now a fairly unclear system,” said Schakowsky.

http://www.chicagotribune.com/news/local/breaking/chi-2-illinois-congressmen-test-new- deportation-policy-20111124,0,2123872.story

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House Votes to End Country Limits for Skilled Workers Seeking Green Cards

The Associated Press reports that the House voted 389-15 to eliminate the current law that says employment-based visas to any one country can’t exceed 7 percent of the total number of such visas given out. Rep. Jason Chaffetz (R-Utah), the bill’s sponsor, said the bill “does encourage high-skilled immigrants who were educated in the U.S. to stay and help build our economy rather than using the skills they learned here to aid our competitor nations.” Immigrant rights activists applaud Congress for taking action but insist the bill will only relieve some problems, not solve them. Sen. Charles Schumer (D-NY) has vowed to move the bill as quickly as possible in the Senate where he expects “overwhelming support.” The bill’s Senate version is the subject of a hold by Charles Grassley, Republican from Iowa and it is not clear yet how the bill will proceed in the upper Chamber.

http://www.firstpost.com/world/us-house-votes-to-end-country-caps-for-work-visas- 143900.html

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8. Updates from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

• History Repeating Itself: Alabama Refuses to Cooperate With Justice Department in Civil Rights Probe

  • DOS Temporarily Halts J, F and M Visa Processing Across the World
  • Police Arrest Mercedez-Benz Exec Under New Alabama Law
  • House E-Verify Bill Violates Republican Small Government Pledge
  • Entrepreneurs Sailing Away
  • Gingrich Strikes Note of Pragmatism on Immigration
  • H-1B Cap Used Up
  • Smelling Blood
  • Romney Was For Legalization Before He Was Against It
  • Floating Tech Incubator Moving Forward
  • Priority Date Bill Up for Full House Vote Tomorrow
  • Immigration No Longer Top Issue for Voters
  • Sheriff Joe to Endorse Perry
  • HR 3012 Could Move Quickly in Senate
  • Steve King, You Stay Classy
  • Another Republican Leader Warns Candidates on Immigration
  • Alabama Business Leader: New Law is Hurting Us
  • GAO Pans USCIS Transformation Efforts
  • Summary of HR 3012
  • Again! Transferred Japanese Honda Employee Arrested in Alabama Under New Immigration Law
  • American Heritage Dictionary Will Now Properly Label Term “Anchor Baby”
  • Dumb RFE of the Day: USCIS Demands Proof a Physician Needs a College Degree
  • Alabama Governor Panicking About Law’s Effect on Foreign Investors
  • An Enterprising Lawyer?
  • Clinton Orders Review of J-1 Work-Study and Trainee Programs
  • Gingrich Surge Shows Antis Aren’t as Powerful as Believed

The SSB I-9, E-Verify, & Employer Immigration Compliance Blog

The Visalaw Healthcare Immigration Blog

Karen Weinstock’s Visalaw Georgia Immigration Blog

9. State Department Visa Bulletin: January 2012

January Visa Bulletin Summary:

Family 1st – World numbers, China and India have

  • ICE Issues New Round of I-9 Audit Notices
  • How ICE Fines are Calculated
  • AAO: J-2s Can Adjust Status Independent of J-1 Spouses
  • 5th Circuit Upholds Louisiana Bar on Foreign Nurses
  • DEPORTATIONS SOAR NATIONWIDE BUT ESPECIALLY IN GEORGIA-ALABAMA AREA
  • FORMER GEORGIA SOS SPEAKS AGAINST HB87
  • HB87 CAUSES RESTAURANT LABOR SHORTAGE
  • ARE REPUBLICANS REALLY OPEN TO IMMIGRATION REFORM?
  • ALABAMA IMMIGRATION LAW HB56 MAY BE CHANGED?

jumped six weeks to 15 October 04; 1

week advance for Mexico to 15 April 93; Philippines advanced six weeks to 15 April 97.Family 2A – World numbers, China, India, and the Philippines have jumped a month to 22
April 09; Mexico advanced more than six weeks to 22 March 09.
Family 2B – World numbers, China, India advanced 3 weeks to 08 September 03; Mexico
moved a week and a half to 01 December 92; Philippines advanced two weeks to 01
September 01.
Family 3rd – World numbers, China, India jumped three and a half weeks to 01 November
01; 1 week advance for Mexico to 22 December 92; Philippines moved one week to 15 July
92.
Family 4th – World numbers, China, India jumped one month to 15 August 00; Mexico
advanced one week to 08 May 96; Philippines jumped one month to 08 October 88.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, Philippines still current, China and India jumped
nine and a half months to 01 January 09.
Employment 3rd – World numbers, Mexico, Philippines advanced three weeks to 01 February
06; China jumped five weeks to 15 October 04; India moved one week to 08 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, Philippines jumped one month to
01 February 06; China stalled at 22 April 03; one and a half week advance for India to 01
August 02.
Employment 4th – still current in all categories. Employment 5th – still current in all categories.

1. This bulletin summarizes the availability of immigrant numbers during January. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by December8th. If not all demand could be satisfied, 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 dateearlier than the cut-off date may be allotted a number. If 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 announced in this bulletin.Number 40 Volume IX Washington, D.C.

A. STATUTORY NUMBERS

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. 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.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. 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, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

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 isearlier than the cut-off date listed below.)
All CHINA-
Family- Chargeability mainland INDIA

Sponsored Areas Except born Those Listed

MEXICO PHILIPPINES

15APR93 15APR97

22MAR09 22APR09

01DEC92 01SEP01

22DEC92 15JUL92

08MAY96 08OCT88

F1 15OCT04

  1. F2A 22APR09
  2. F2B 08SEP03
  1. F3 01NOV01
  2. F4 15AUG00

15OCT04 15OCT04

22APR09 22APR09

08SEP03 08SEP03

01NOV01 01NOV01

15AUG00 15AUG00

*NOTE: For January, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22MAR09. F2A numbers SUBJECT to per-country
limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22MAR09 and earlier than 22APR09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

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”.

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 Pub. L. 102-395.

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 isearlier than the cut-off date listed below.)

All CHINA- Employment- Chargeability mainland INDIA

Based Areas Except born Those Listed

MEXICO PHILIPPINES

1st C C C C C

2nd

3rd

Other Workers

C

01FEB06

01FEB06

01JAN09 01JAN09 C C

15OCT04 08AUG02 01FEB06 01FEB06

22APR03 01AUG02 01FEB06 01FEB06

4th C C C C C

Certain Religious Workers

CCCCC

5th
Targeted EmploymentAreas/ C Regional Centers
and Pilot Programs

C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, 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.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA 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 resulted in reduction of the DV-2012 annual limit 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 January, immigrant numbers in the DV category are available to qualified DV-2012 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

24,700

Except: Egypt 16,800 Ethiopia 16,800 Nigeria 14,500

ASIA

18,500

EUROPE16,500NORTH AMERICA (BAHAMAS)

6 OCEANIA

650

SOUTH AMERICA, and the CARIBBEAN675

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-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 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 FEBRUARY

For February, immigrant numbers in the DV category are available to qualified DV-2012 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

AFRICA32,000

Except: Egypt 21,000 Ethiopia 21,500 Nigeria 16,000

ASIA

23,900

EUROPE22,000

Except: Uzbekistan 16,500

NORTH AMERICA (BAHAMAS)
7
OCEANIA

775

SOUTH AMERICA, and the CARIBBEAN
775

D. CHINA-MAINLAND BORN AND INDIA EMPLOYMENT-BASED SECOND PREFERENCE VISA AVAILABILITY IN THE COMING MONTHS

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

E. ANNUAL REPORT OF IMMIGRANT VISA APPLICANTS IN THE FAMILY-SPONSORED AND EMPLOYMENT-BASED PREFERENCES REGISTERED AT THE NATIONAL VISA CENTER AS OF NOVEMBER 1, 2011

This information is available on the Consular Affairs www.travel.state.gov web site. Once at that site, select “Visas” from along the top line, then on the left side select “Visa Statistics”, then Immigrant Visas”, then under the Hot Items select the “Annual IV Waiting List Report”.

F. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:

http://www.travel.state.gov/visa/bulletin/bulletin_1360.htmlTo 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: (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.)

Department of State Publication 9514 CA/VO: December 8, 2011

10. Section by Section Summary of H.R. 3012 – The Fairness for High-Skilled Immigrants Act of 2011

Section 1. Sets out the title of the bill.
Section 2. Numerical Limitation to Any Single Foreign State

Amends INA Section 202(a)(2) to deal only with family based immigration and separates out the employment-based green card quotas section.

Increases per country quotas for family categories from 7 to 15%.

Eliminates 1000 green cards per year subtraction from family green cards available to Chinese nationals (a creation of the Chinese Student Protection Act of 1992).

This section takes effect as if enacted on September 30, 2011 and shall apply to the 2012 fiscal year which began October 1, 2011.

Eliminates per country quotas in employment-based green card categories.

The elimination of the quotas will be phased in over three years. In fiscal year 2012 (October 1, 2011 to September 30, 2012), 15% of 0all EB-2 and EB-3 green cards will be reserved for all countries except for the two EB using nationalities as of 201(India and China).

In fiscal year 2013 (October 1, 2012 to September 30, 2013), 10% of all EB-2 and EB-3 green cards will be reserved for all countries except for the two EB using nationalities as of 2011 (India and China).

In fiscal year 2014 (October 1, 2013 to September 30, 2014), 10% of all EB-2 and EB-3 green cards will be reserved for all countries except for the two EB using nationalities as of 2012 (likely India and China).

During the phase in, the number of green cards going to any one country under the 15% and 10% reserves noted above may not exceed 25% (except for India and China) of that reserve. For the remaining green cards being split between China and India, no more than 85% can go to either country.

If the phase in rules would prevent the total number of green cards made available in EB-2 and EB-2 from being issued, such visas may be issued during the remainder of the fiscal year in question anyway.