February 2012

Posted on: February 29th, 2012
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Siskind’s Immigration Bulletin – February 27, 2012

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:

As I’m writing this over the weekend in my home office, I have a television set going in the background with the volume down, but with yet another political ad running. This time its Mitt Romney pounding Rick Santorum. Actually, most of them are Mitt Romney negative ads. My state’s primary is coming up a week from Tuesday so after Michigan and Arizona have their say, the candidates will come south to my part of America.

Despite poll after poll showing immigration is not a major priority for most Americans (except Latinos), you wouldn’t know it from listening to the Republican candidates. They’ve brought immigration front and center and each tries to move further and further to the extreme on the issue of border security and the broader issue of illegal immigration. Mitt Romney, for example, has proudly touted the endorsement of Kris Kobach, one of the most anti-immigrant politicians in the country. He’s even taken him on as an advisor. Rick Santorum is as hardline on immigration as Romney including opposing the DREAM Act. His record in Congress was pretty dismal as well. Newt Gingrich and Ron Paul are somewhat less radical, but neither can hardly be called a moderate.

To their credit, all of the candidates support making the US immigration system more attractive and open to high skilled immigrants, but they usually spend little time talking about this and none have a record of really doing much to promote highly skilled immigration in the past. And the GOP in general has been hostile to moving skilled worker immigration bills in recent years. Congressmen Lamar Smith and Steve King and Senator Chuck Grassley are the most vocal Republicans in Congress on immigration issues and all have long records of opposing legal immigration programs.

Perhaps the candidates believe that GOP conservative (i.e. Tea Party) voters are making their decision on this issue. There is little evidence to support this proposition, but even if true, the risks for the general election are enormous. Most voters don’t consider immigration to be a major issue. But Latinos do. Immigration tends to be a filter issue. They may not make it their number one issue, but they won’t consider voting for a candidate with an anti-immigration record.

In the mean time, the President has been moving in the opposite direction. Much of his first three years in office have been spent cracking down on illegal immigration. The number of deportations has risen dramatically which has muted much of the anti-immigration movement’s rhetoric, but angered Hispanics. Since last summer, however, the tone has shifted dramatically. The President has rolled out a series of initiatives designed to make life better for non-criminal long time illegally present immigrants. These include a major prosecutorial discretion initiative and the announcement that immigrant bar waivers will soon be processed in the US. And the White House has also made a series of announcements designed to promote immigration for entrepreneurs and high-skilled immigrants.

The big questions are whether the Republican nominee will try and move back to the middle and whether the damage with Hispanic voters can be reversed and whether President Obama can meet or exceed the support he received from those voters in 2008.

*****

Readers are reminded that they are welcome to contact my law office if they would like to schedule a telephone or in person consultation with me or one of my colleagues. If you are interested, please call my office at 901-682-6455.

Regards, Greg Siskind

2. ABCs of Immigration Law: H-2B Temporary Non-Agricultural Workers Visas

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available and when the employment of those foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a program cap of 66,000 visas per year.

On February 21, 2012 the Department of Labor

The stated goal of the new regulations is to “ensure that U.S. workers receive the same level of

protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.”

issued a Final Rule on the H-2B program

that amended its regulations governing the certification of the employment of nonimmigrant

workers performing temporary or seasonal non-agricultural labor or services and the

enforcement of the obligations applicable to employers under the H-2B program.

Major features of the final rule include the creation a national electronic job registry for all

H-2B job orders to improve U.S. worker access to these temporary jobs. The final rule also

enhanced recruitment of U.S. workers from across the country, increasing the amount of

time for which U.S. workers must be recruited and hired, and requiring the rehiring of

former employees when available. In addition, the Final Rule returned the H-2B program to

a certification-based model, rather than an attestation-based model, meaning that an

employer must demonstrate – not merely attest – that it was unable to locate sufficient

number of U.S. workers.
What kinds of jobs qualify for H-2Bs?

For a foreign worker to be covered by an H-2B visa, the job the employer offers needs three essential criteria:•The job and the employer’s need must be one time, seasonal, peak load or intermittent;

•The job must be for less than one year; and
•There must be no qualified and willing U.S. workers available for the job.

When should an employer file for an H-2B visa?

The Final Rule created a registration process for the employer to prove a legitimate temporary need before the employer is allowed to file an application for temporary employment certification. The registration is valid for up to three years and employers can recruit and test the labor market during the second and third years of registration without having to again prove their need.The employer must file the registration no fewer than 120 days and no more than 150 calendar days before the date of initial need. The registration must be accompanied by supporting documents showing the number of H-2B workers requested and the time period they will be needed.

What are the steps an employer must follow to obtain H-2B certification?

The employer must go through a seven step process to obtain an H-2B visa:

1. The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) covering the area of proposed employment.

2. The SWA informs the employer on requirements for recruitment, wage options, and working conditions offered and refers qualified candidates to the employer for interviews. The employer will also be required to advertise the position to demonstrate a lack of availability of American citizen and permanent resident workers.

3. The employer creates a recruitment report summarizing the results of the effort, including names and addresses of applicants, and reasons for not hiring particular interviewees. The employer must demonstrate that there are no immediately available citizen or permanent resident workers willing to work at the prevailing wage (or the actual wage paid by the employer if higher).

4. After an evaluation, the SWA will forward the applications to the appropriate National Processing Center (NPC).

5. The NPC certifying officer (CO) will review the applications. The CO will grant certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.

6. The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS. The Labor Certification Determination and the form I-129 are submitted to the USCIS.

7. The foreign potential employee must apply for a visa at his or her respective U.S. Consulate.

* When filing an Application, the employer and its agents and attorneys must provide copies of any agreements with recruiters engaged in international recruiting. In addition, employer and its agent and attorney must provide the names and locations of sub-contractors hired by the recruiter who will recruit H-2B workers.

**Employers must maintain SWA job postings until 21 days before the date of need

How long is an H-2B visa valid?

The length of stay on an H-2B visa will be granted in increments of up to a year depending on the anticipated length of the employment period. The maximum period of stay in H-2B classification is three years. The visa may be extended in one year increments for a total of three years, but USCIS will often deny extension requests because they question whether a job is really temporary.

Who is eligible/ineligible for an H-2B visa?Either skilled or unskilled workers may be employed on an H-2B visa. The visa is generally used for entertainers and athletes and who do not meet the requirements of the O and P visa categories. Recently, the H-2B visa has become very popular with professions in the hospitality industry.

The only workers specifically excluded are foreign medical graduates seeking to perform work in medical fields and agricultural workers.

Can job contractors participate?

Participation of job contractors is limited to those with their own genuine temporary need for workers on a temporary seasonal or one-time occurrence basis. The job contractor and its clients, the end-employers, must continue to declare joint employment, and both must continue to sign Appendix B agreeing to comply with the H-2B terms and conditions.

What documentation must an employer keep on an H-2B worker?

If the worker is self-employed:

A contract between the employer and the worker specifying the wages and terms of employment

A complete itinerary of the planned employment

The employer must retain all documents pertaining to the Application and Registration, the recruitment-related documents, the payroll records, and related documents for 3 years.

  • The dates of the proposed employment
  • The name and address of the employers
  • List of locations where the work will be performed

How many H-2Bs are granted per year?

Up to 66,000 H-2Bs are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The 66,000 limit does not apply to spouses and children and they may enter the US in H-4 status. H-2B workers are only counted against the cap in the first year of the H-2B petition and are not counted when returning for seasonal work or extensions.

What obligations does an employer have in an H-2B case?

1. The employer must pay an offered wage that equals or exceeds the highest of the prevailing wage or Federal, State, or local minimum wage, and must be paid for the entire employment period certified in the Application.

2. The employer must pay at least the offered wage free-and-clear, either in cash or in a negotiable instrument payable at par.

3. The employer must provide, without charge or deposit, all tools, supplies, and equipment needed to perform the job.

4. The employer is liable under H-2B for reasonable cost of 1) inbound travel, including daily subsistence expenses, for workers who complete 50% of the job order, and 2) outbound
travel, including daily subsistence expenses, for workers who work until the end of the job order or are dismissed early.

5. The employer must guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays in every 12-week period (or, for job orders less than 120 days, every 6-week period).

6. The employer is required to pay or reimburse in the first workweek the full cost of visa and visa-related expenses.

Can an employer substitute workers in an H-2B case?

Yes, but only if the petition was approved for unnamed beneficiaries, the petition was for a group or the job does not require education, teaching or experience. The substitutions can be made at a consulate.

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.

***

1) QUESTION:

I am a U.S. citizen. I filed an I-130 petition for my 2 year old child. I am not married to my child’s mother yet. Can my child’s mother come to the U.S. as a derivative beneficiary to accompany my child?ANSWER:

As the unmarried child of a U.S. citizen who is under 21, your child is your Immediate Relative. Beneficiaries under the Immediate Relative category cannot have derivative beneficiaries. Also, a parent cannot be a derivative beneficiary.

If you are already planning on marrying your child’s mother, you can marry her and petition for her as your Immediate Relative spouse.

Warning: U.S. citizens and Permanent Residents should never marry a foreign national solely to obtain an immigration benefit for the foreign national. There are dire consequences for doing this.

If you do not wish to marry the mother of your child, you should speak with an immigration law attorney to determine if there are other options to bring her to the U.S.

2) QUESTION:

A bill was recently introduced in Congress that would permit illegally present immigrants to join the military and become permanent residents after five years, two of which must have been spent in active military service or four in the reserves. That bill has received bipartisan support so keep an eye out for movement on this proposed piece of legislation.
I was imprisoned in my home country for protesting against the dictorial regime. When I

applied for asylum, I answered ‘yes’ on the question asking if I had ever been arrested.

But when I applied for my green card I answered ‘no’ to the question of whether I had ever

been arrested for breaking or violating a law because the arrest itself was illegal.U.S.
Now I am applying for
citizenship. Do I have to answer ‘yes’ to the question of whether
I have been arrested? Will it be a problem that my answers on my asylum application and

green card application were different?
ANSWER:

With the naturalization application, it is always best to err on the side of being too honest,

as the easiest way for a USCIS officer to deny an application is to show that the applicant

was not truthful in the application. A denial on this basis will mean that the applicant willhave to wait another 5 years (3 years if you are applying as the spouse of a
citizen)
before being able to file again.

U.S.

If you have ever been arrested, detained, ticketed, or given a citation for any reason you

should check yes in answer to the question on the N-400. This is true even if it was an

unlawful arrest or detention, if it happened in a different country, if the charges were

dismissed, if no charges were ever brought, or if the arrest records were expunged. You can

include an explanation of the arrest on the application and you will be given a chance to

explain the arrest at the interview.In this situation you should also answer yes to the question about whether you ever gave

false or misleading information when applying for an immigration benefit. This is because

you did not mention the arrest on the green card application. As I said, it is best to err on

the side of being overly honest on the naturalization application. Again you can include an

explanation in the application and will be able to explain at the interview.

4. Border and Enforcement News:

Canada’s Tightening Immigration Policy May Be Felt in U.S.

The Los Angeles Times reports that Canada’s Conservative government has begun instituting more stringent immigration enforcement, stepping up efforts to track down and deport thousands of asylum-seekers whose applications have been denied. Immigration analysts warn that the United States could become a new destination for these asylum applicants soon to be pushed out of Canada. U.S. officials say that asylum claimants who are denied refugee protection in Canada will not be automatically turned away at the U.S. border, despite a 2004 agreement between the countries that bars new arrivals in either from entering the other to claim asylum. U.S. officials say they do not anticipate a massive increase in the number of those seeking to cross the border through legal channels. They

expect that Canada will allow some failed applicants to stay under other exemptions and will deport as many as possible of those deemed not at risk of persecution in their home countries.

http://articles.latimes.com/2012/jan/14/world/la-fg-canada-immigration-20120115

*****

5. News from the Courts:

Appeals Court Halts Deportation of Seven Immigrants

The Associated Press reports that the San Francisco-based 9th U.S. Circuit Court of Appeals halted the deportation of seven immigrants. The court demanded that the Obama administration explain whether the immigrants qualify for a reprieve under the administration’s new immigration directive prioritizing criminal deportations. The court gave the administration until March 19 to respond.

http://www.npr.org/templates/story/story.php?storyId=146602674

*****

6. News Bytes:The Top Ten H-1B Visa Users in the U.S.

Computerworld reports that offshore outsourcing companies continued to make up the majority of the top ten H-1B visa users in 2011, according to new government data. In total, the new visa applications for the top ten users account for 22% of all the visas allowed by the U.S. each year. Eight of the top ten H-1b employers use offshoring business models.

http://www.computerworld.com/s/article/9223745/The_top_10_H_1B_visa_users_in_the_U .S.

*****

Ron Paul Says Latinos Are Being Made “Scapegoats”

Politico (DC) reports that at a campaign stop in East Las Vegas, Ron Paul told about 100 Hispanics that they have been unfairly made “scapegoats” for the country’s economic troubles. “When things go badly, individuals look for scapegoats,” he said. “I just do not believe that barbed-wire fences or guns on our border will solve any of our problems,” he added. Paul was the only GOP presidential candidate to attend the event hosted by the nonpartisan group Hispanics in Politics. Paul called immigration a “complex issue” and stated that he felt the United States “should have a legal and generous immigration policy.” Paul’s message to Latino voters did have one notable rough patch in his opposition to the DREAM Act which would grant citizenship to some illegally present residents. He registered his objections with sympathy, explaining that he simply opposes spending federal money to help one minority group over another. “The DREAM Act was the only place where he was absolutely wrong,” said Fernando Romero, the president of the group that hosted the morning forum.

http://www.politico.com/news/stories/0212/72336.html*****

Study Shows Alabama Immigration Law Costs $11 Billion

Politico (DC) reports that a cost-benefit analysis, conducted by economist Samuel Addy of the University of Alabama, determined that the estimated 40,000 to 80,000 unauthorized immigrant workers fleeing the state have resulted in 70,000 to 140,000 jobs lost and $2.3 to $10.8 billion reduction in Alabama’s GDP annually. The study’s conclusions were based on an examination of a wide range of costs that result from the law including its implementation, enforcement and litigation expenditures, costs derived from decrease in economic development opportunities, and reduced earning and spending from illegally present immigrants who have left the state.

http://www.politico.com/news/stories/0212/72308.html*****

Obama Administration Eyeing Georgia’s Immigration Law

The Atlanta Journal Constitution reports that the Justice Department is reviewing Georgia’s tough new immigration law and is discussing it with businessmen and law enforcement officials, but it has not decided to sue to block the statue as it has in four other states, U.S. Assistant Attorney General Tony West said. West pointed out that the Obama administration is suing to block a similar law in Alabama and that both its law and Georgia’s statute are scheduled to come under review by the 11th Circuit Court of Appeals in Atlanta at the end of February.

Chuck Kuck, a local immigration attorney who is fighting Georgia’s law in court, criticized the Justice Department’s decision to continue reviewing the law without filing suit saying, “once the 11th Circuit rules on this case there is no import in the federal government coming in.” On the subject of making a definitive decision about Georgia’s law, West added, “We still continue to have these conversations. I am not closing the door on anything at this point.”

http://www.ajc.com/news/georgia-politics-elections/obama-administration-eying-georgias- 1336827.html

*****

Alabama immigration Law May See Changes in Coming Weeks

Fox News Latino reports that Alabama lawmakers say they plan to propose changes to the state’s immigration law. House Majority Leader Micky Hammon, the sponsor of the immigration bill passed last year, said the new bill will not make major changes and is not aimed at softening the law. Parts of the law, such as a requirement for schools to track the immigration status of students, have been thrown out by the courts. Hammon said the courts have not finished reviewing the legislation and those provisions will not automatically be eliminated from the bill when making the changes.

An opponent of the immigration law, State Senator Billy Beasley (D), has pre-filed a bill to repeal it. Beasley acknowledged that he faces an uphill battle in Alabama’s Republican-controlled Legislature, but hopes some who voted for the passage last year will realize that the law is hurting the state. Sen. Beasley represents a mostly rural southeast Alabama district where farmers have complained the immigration law has stripped them of many workers they need to plant and harvest crops.

http://latino.foxnews.com/latino/news/2012/02/13/alabama-immigration-law-may-see- changes-in-coming-weeks/

*****

U.S. Department of State Issues Final Rule on L Visas

The U.S. Department of State issued a Final Rule permitting the issuance of L visas with validity periods based on the visa reciprocity schedule. Previously, L visas were limited to the petition validity period, which is determined by the Department of Homeland Security.

*****

7. Washington Watch:

Illegally Present Immigrants in Military Would Win Citizenship from Florida Republican’s Bill

The Hill (DC) reports that Rep. David Rivera (R.-Fla.) proposed a bill similar to the DREAM Act, called the ARMS Act, which could provide a path to citizenship for illegally present immigrants who serve in the military. Rivera decided to introduce the legislation after Republican presidential front-runners Newt Gingrich and Mitt Romney backed the idea at the Florida Republican presidential debate. Under the ARMS Act, potential applicants would have to serve at least two years in active duty or four years in the reserves and would have to demonstrate “good moral conduct.” In addition, the bill would only apply to illegally present immigrants who came to the United States before they were 16 and have been living in the country for at least five years. Applicants would also need a high school diploma or equivalent.

http://thehill.com/blogs/defcon-hill/policy-and-strategy/207069-military-only-version-of- dream-act-gets-support-from-gingrich

*****

8. Updates from the Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

  • Bill Would Create Path to Citizenship for American Soldiers
  • Would Liberalizing H-1B Rules Bring iPhone Manufacturing Back to the US?
  • This and That
  • Ron Paul Says Immigrants Being Made Scapegoats
  • USCIS Introducing More Employment Immigration Reforms
  • Reap What you Sow
  • Should Watered-Down DREAM Act Pass?
  • US Closing Embassy in Syria
  • 9th Circuit Court of Appeals Orders DOJ to Opine on Prosecutorial Discretion
  • March 2012 Visa Bulletin Summary
  • Report Shows Massive Increase in Denials and Delays in High Skilled Worker Cases
  • Supreme Court to Hear the Arizona Case in April
  • This and That
  • New Charges of Racism Leveled Against Kobach
  • ICE Agent Shot in Worksite Dispute
  • Checking in on the Campaign
  • Immigration Hardliner Arizona Sheriff Paul Babeu Resigns As Volunteer for RomneyCampaign
  • Santorum Courts Arizona’s Anti-Immigrant Leaders
  • Immigrant of the Day: Varvara Lepchenko – Tennis Player
  • A Job Well Done
  • Anti-Immigrant Arizona Sheriff May Have Helped Boyfriend Engage in Illegal Work
  • Obama: I’ve Got Five Years to Fix Immigration

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

The Visalaw Healthcare Immigration Blog

Karen Weinstock’s Visalaw Georgia Immigration Blog

• Washington State Bill Would Bar Towns from Mandating E-Verify Use

  • 5th Circuit Upholds Louisiana Bar on Foreign Nurses
  • The History of IMGs in America
  • Massachusetts Health Plan Must Cover Legal Immigrants

• USCIS IMPROVES UNLAWFUL PRESENCE EXTREME HARDSHIP WAIVERS
• GEORGIA’S IMMIGRANT POPULATION RISES
• TWO GEORGIA DEMOCRATS WANT IN-STATE TUITION FOR UNDOCUMENTED • GA DEMOCRATS PUBLIC HEARING THIS THURSDAY FOR RESCINDING HB87 • GREAT NEWS! HB59 IS SUSPENDED!
• GEORGIA SENATE ASKS FEDS FOR MORE FARM WORKERS
• SB458 HEARING LATER TODAY

9. State Department Visa Bulletin: March 2012

March Visa Bulletin Summary:

Family 1st – World numbers, China and India

advanced five weeks to 01 February 04; 1 and

a half week advance for Mexico to 01 May 93; Philippines jumped one month to 22 June 97.

Family 2A – World numbers, China, India, and the Philippines have jumped six weeks to 22

July 09; Mexico advanced three and a half weeks to 01 July 09.

Family 2B – World numbers, China, and India jumped a month to 15 November 03; Mexico

remains stalled at 01 December 92; Philippines advanced five weeks to 08 December 01.Family 3rd – World numbers, China, and India jumped one month to 01 January 02; one

week advance for Mexico to 08 January 93; Philippines stalled at 22 July 92.

Family 4th – World numbers, China, and India jumped one month to 08 October 00; Mexico

advanced one week to 22 May 96; Philippines advanced seven weeks to 22 December 88.

Employment 1st – still current in all categories.

Employment 2nd – World numbers, Mexico, and Philippines still current, China and India

jumped four months to 01 May 10.

Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15

March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.

Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three

weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to

22 August 02.

Employment 4th – still current in all categories. Employment 5th – still current in all categories.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during March. 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 February 8th. 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 date earlier 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.

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

Number 42 Volume IX Washington, D.C.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 is earlier than the cut-off date listed below.)

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

F1

01FEB05
01FEB05
01FEB05
01MAY93
22JUN97
F2A
22JUL09
22JUL09
22JUL09
01JUL09
22JUL09
F2B

15NOV03
15NOV03
15NOV03
01DEC92
08DEC01

  1. F3 01JAN02 01JAN02 01JAN02 08JAN93 22JUL92
  2. F4 08OCT00 08OCT00 08OCT00 22MAY96 22DEC88

*NOTE: For March, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUL09. F2A numbers SUBJECT to per-country
limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUL09 and earlier than 22JUL09. (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 is earlier than the cut-off date listed below.)

Employment- Chargeability mainland INDIA MEXICO PHILIPPINES Based Areas Except born

Those Listed

1st C C C C C

2nd C 01MAY10 01MAY10 C C

All CHINA-

3rd

Other Workers
15MAR06 01JAN05 22AUG02 15MAR06 15MAR06

15MAR06 22APR03 22AUG02 15MAR06 15MAR06

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 March, 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

AFRICA

ASIA

EUROPE

NORTH AMERICA (BAHAMAS)
Areas Except Those Listed Separately

Except: Egypt 26,000 35,800 Ethiopia 26,000

27,000

26,500

7
Nigeria 17,500

Except: Uzbekistan 16,500

OCEANIA 925

SOUTH AMERICA, and the CARIBBEAN
925

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 MARCH

For April, 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:

All DV Chargeability

Region Areas Except Those Listed

Separately

AFRICA 39,000

ASIA 32,600
Except: Egypt 29,500 Ethiopia 29,500 Nigeria 20,000

EUROPE 32,000 Except: Uzbekistan

16,500

NORTH AMERICA (BAHAMAS) 9

OCEANIA

1,000

SOUTH AMERICA, and the CARIBBEAN

1,000

D. 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.html

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: (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: February 8, 2012

10. USCIS Proposed Employment Immigration Rules Changes

US Citizenship and Immigration Services announced January 31st that it is proposing a series of changes to employment immigration rules which are designed to benefit the US economy and continue to make the US attractive to highly skilled immigrants. The following are the planned changes:

• Expand eligibility for 17-month extension of optional practical training (OPT) for F-1 international students to include students with a prior degree in Science, Technology, Engineering and Mathematics (STEM).

Under the current rules, the applicant for an extension must be currently pursuing a STEM degree. The new rule would allow for an extension even if the current degree is not a STEM field as long as the applicant

• Allow for additional part-time study for spouses of F-1 students and expand the number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students.

Currently, F-2 spouses can only take vocational and recreational classes. They would now be able to take any kind of course load as long as it is part time and not full-time.

• Provide work authorization for spouses of certain H-1B holders.

Under this proposed rule, H-4 spouses could get work authorization if their H-1B spouse is filing for an employment-based green card. A minimum period of time in H-1B status will need to pass, though USCIS has not specified the amount yet.

• Allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

The new rule would add “comparable evidence” to the regulatory list for researchers and professors, something that the other exceptional immigrant visa categories contain.

• Harmonize rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile to continue working with their current employer for up to 240 days while their petitions for extension of status are pending.

E-3 and H-1B1 visa holders will be work authorized for up to 240 days while extension applications are pending, similar to H-1B and L-1s.

• Launch Entrepreneurs in Residence initiative

On February 22, 2012, USCIS will launch its Entrepreneurs in Residence initiative with an Information Summit in Silicon Valley, CA.