Siskind’s Immigration Bulletin – January 30, 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: email@example.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.
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While many predicted the Republican nomination race would be over by now, we’ve had three winners in three contests (and the Florida race, which may be over by the time you read this, is neck and neck). And despite polling showing Americans rank immigration pretty low on the list of issues of concern, immigration policy has been front and center in the Republican fight.
Newt Gingrich is considered generally to be more conservative on most issues, but on immigration issues, he’s probably the most progressive of the field. He has spoken out in favor of having a more flexible enforcement policy that creates some pathways to legalization for limited populations and a much more robust legal immigration system designed to attract highly skilled immigrants.
Mitt Romney has a strongly pro-immigrant view when it comes to skilled workers and has gone so far as to endorse the Thomas Friedman proposal to “staple” a green card to the diploma of students pursuing advance degrees in the US. But he has drawn a great deal of attention for being to the extreme right on questions of illegal immigration. He has confirmed he would veto the DREAM Act if passed by Congress. He recently endorsed an attrition strategy on enforcement (calling it “self-deportation”) that aims to make life so miserable for illegally present immigrants that they would voluntarily leave the US rather than having to be picked up and forcibly deported. And he touted the endorsement of the darling of the extreme anti-immigration movement, Kansas Secretary of State Kris Kobach. Kobach is the author of the infamous Arizona and Alabama immigration laws.
Gingrich’s record on immigration over the last twenty years has consistently been moderate so it was refreshing to see him resist the temptation to run to the right on this issue. Perhaps he was also shrewd knowing that Republican voters generally are not engaged on the topic and are more likely to accept different views on this issue than other issues that are of greater concern. In a general election, he’ll be counting on doing at least as well as part Republican nominees have done with Latino voters.
Romney, however, shifted from a relatively moderate position to this much tougher line. He has gotten the endorsement of Florida Senator Marco Rubio, a leading Latino politician, but on immigration issues, Rubio’s views have been to the right of virtually the entire Latino political establishment, including several prominent Latino Republicans like Ileana Ros- Lehtinen from Miami. Ros-Lehtinen endorsed Romney earlier in the campaign, but it was before Romney got the Kobach endorsement.
Romney’s most strident anti-immigration statements and the Kobach endorsement came in the lead up to the South Carolina primary. Obviously, the strategy was an utter failure and it certainly has made the situation tougher for Romney in Florida and, no doubt, in the general election. The President will have plenty to work with when it comes to using Romney’s own words to remind Latino voters that the Republican is no friend of their community. Of course, Romney’s major critics complain that he is a flip-flopper so perhaps he will revert back to more moderate views in a general campaign. Time will tell.
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: Temporary Protected Status
Who can declare TPS?
The Secretary of the Department of Homeland Security may grant foreign aliens temporary protected status, which provides the alien with an “employment authorized” endorsement for the duration of such status. The White House has the authority to recommend TPS as well.
Does TPS status affect an alien’s immigration status or vice versa?
If there are any removal procedures underway against aliens of a country on the TPS list, they should be frozen. Nothing authorizes the Secretary to deny TPS to an alien based on their immigration status. Furthermore, the alien, upon being granted TPS, is not required as a condition of such, to relinquish nonimmigrant or other status he may hold.
An application for TPS will have no affect on an application for asylum or any immigration benefit and vice versa and being in TPS will not improve one’s chances of getting permanent residency except to the extent it will toll any period of unlawful status that might preventone from qualifying to adjust status (see below). Nor does denial of an immigration or asylum petition have any bearing on an application for TPS unless the basis for denial of the immigration or asylum petition is something that would bar TPS (see below).
Time spent in TPS status is considered a lawful status for purposes of adjusting to permanent residence. Note that time before and after TPS is granted which are not lawful will not be treated the same way.
What qualifies a country for TPS?
To qualify as a TPS nation, the Secretary of the Department of Homeland Security must assess the conditions in a country and find one of the following conditions:
a) Thereisanongoing,armedconflictwithinthecountry,andasaresultofthis conflict, returning to their home country would pose great risk to the personal safety of aliens who are nationals of said country.
b) Therehasbeenanearthquake,flood,drought,epidemic,orotherenvironmentalor natural disaster in the state, resulting in “substantial,” but temporary or reparable, disruption of the living conditions in the affected area.
c) A foreign state has officially requested TPS.
aliens who are nationals of that country from returning, without endangering their personal safety, UNLESS the Secretary finds that allowing aliens to remain in the US is “contrary to the national interest of the United States.” (244(b)(1)(C))For the TPS designation to take effect, the Secretary must publish notice of this designation, including the findings of their assessment of the foreign state, the date the designation takes effect, and an estimate of the number of foreign nationals from the state gaining TPS, in the Federal Register.
A list of TPS designated countries is maintained on the USCIS web site atwww.uscis.gov.
How long does TPS remain in effect?
Upon publication of TPS designation, the status shall remain in effect for an initial period of not less than 6 months and not more than 18 months. However, no less than 60 days before TPS is set to expire, the Secretary of DHS shall review again the conditions in the foreign state and determine whether the conditions necessary to declare TPS remain in effect. The Secretary then must publish their new findings in the Federal Register again. If the Secretary finds that the situation has ameliorated and the conditions necessary to declare TPS no longer exist, they shall publish this in the Federal Register, and TPS will be revoked no less than 60 days after such a declaration. If the Secretary finds that conditions continue to warrant TPS for a foreign state, TPS shall be extended for a period of at least 6 months, but up to 18 months, at the discretion of the Secretary.
Which aliens are eligible for TPS?
Aliens who are nationals of a foreign state which has been declared TPS eligible, or aliens without nationality who last habitually resided in such a country, are eligible IF:
a) ThealienhasbeencontinuouslyphysicallypresentintheUnitedStatessincethe effective date of the most recent TPS declarationb) ThealienhaslivedcontinuouslyintheUnitedStatessincesuchatimeasthe Secretary of DHS may decide
The alien registers for TPS during a registration period of no less than 180 days.
The Secretary may waive immigration barriers when assigning TPS to foreign aliens in an effort to assure family unity, or when it is in the public’s best interest. However, the Secretary may not waive the following:
a) Aliens with drug offenses for anything other than simple possession of 30 grams or less of marijuana
b) AlienswhotookpartinNazipersecutions,oranyparticipantsingenocide c) Aliensthathavebeenconvictedofafelonyor2ormoremisdemeanors
committed since they have been in the United States or someone subject to various criminal and security related bars to asylum.USCIS recently also specifically commented on a problem where TPS cases were denied for people who were guilty of two or more traffic infractions. In response to the Haitian earthquake, USCIS issued a memorandum stating that if the ONLY basis for denying a case is a conviction for two or more “traffic infractions” under NY penal laws, the case should be approved. Presumably, the policy will apply to other states which might have similar rules.
How do you apply for TPS?
Applicants must submit the following:
c) d) e) f) g)
seeking a TPS-related Employment Authorization Document) Documents to prove identity and nationality.
Two passport-style photographs of the applicant FilingfeesCopies of documents should be submitted along with a certified translation if the document language is not English. Note that USCIS reserves the right to request submission of original documents at a later time. Also note that the documents listed above need not be submitted with re-registration or renewal applications (though USCIS could still request additional information or documentation).
Applicants will also be required to submit biometrics unless an applicant is under 14 years of age and not applying for an Employment Authorization Document.
What documents can be used to prove identity and nationality?
Applicants may submit any of the following:
c) Any national identity document from the applicant’s country or origin bearing a
photo and/or fingerprint.
What documents can be used to prove date of entry into the United States?
Any of the following:
a) b) c)
d) e) f) g)
Employmentrecords(e.g.paystubs,W-2Forms,taxreturns,employerletters, bank records, etc.);
Rentreceipts,utilitybills,otherreceipts,lettersfromcompaniesshowingdates services were received;
Schoolrecords(letters,reportcards,etc.)showingthenameoftheschooland periods of school attendance;
Hospital or medical records showing the name of the medical facility or physician and the date of the treatment or hospitalization.
Attestationsbychurches,unions,orotherorganizationstoyourresidence identifying you by name. The attestation must be signed by an official whose title is shown, show dates of membership, state the address where you resided during the membership period, include the seal of the organization, establish how the author knows the applicant and showing the origin of the information to which the writer is attesting.
Additionaldocumentsmayincludemoneyorderreceivesformoneysentinorout of the country, passport entries, birth certificates of children born in the United States; dated bank transactions, correspondence between the applicant and another person or organization; US Social Security card, Selective Service card; automobile license receipts, title vehicle registration, etc.; deeds, mortgages, contracts to which the applicant has been a party; tax receipts; insurance policies; receipts; letters; or any other relevant document.What documents can be used to prove residence in the United States?
a) b) c) d) e)
Employmentrecords(e.g.paystubs,W-2Forms,taxreturns,employerletters, bank records, etc.);
Rentreceipts,utilitybills,otherreceipts,lettersfromcompaniesshowingdates services were received; Schoolrecords(letters,reportcards,etc.)showingthenameoftheschooland periods of school attendance;
Hospitalormedicalrecordsshowingthenameofthemedicalfacilityorphysician and the date of the treatment or hospitalization.
Attestationsbychurches,unions,orotherorganizationstoyourresidence identifying you by name. The attestation must be signed by an official whose title is shown, show dates of membership, state the address where you resided during the membership period, include the seal of the organization, establish how the author knows the applicant and showing the origin of the information to which the writer is attesting.
Additional documents may include money order receives for money sent in or out of the country, passport entries, birth certificates of children born in the United States; dated bank transactions, correspondence between the applicant and another person or organization; US Social Security card, Selective Service card; automobile license receipts, title vehicle registration, etc.; deeds, mortgages, contracts to which the applicant has been a party; tax receipts; insurance policies; receipts; letters; or any other relevant document.What if documents are not available?
If documents are not available, an applicant can provide USCIS with an affidavit showing proof of one’s unsuccessful efforts to obtain the documents explaining why one cannot obtain the documents from one’s consulate and affirming that one is a national of the designated state. USCIS has the discretion to request a statement from the issuing authority certifying the document is not available. Applicants may also provide affidavits to prove date of entry and residence.
What is the amount of the filing fee to be submitted?
c) $380feeforFormI-765ApplicationforEmploymentAuthorizationDocument.Note the following: Applicants for EADs over 65 and under 14 do not need to pay the I-765 fee and those not requesting employment authorization need not pay the fee (though the I- 765 form must still be submitted). Also note that children under 14 do not need to pay the biometrics fee unless they are applying for an EAD.
Any of these three fees may be waived if an applicant submits a fee waiver request in the form of a written statement explaining why the applicant is eligible for TPS and why the applicant is unable to pay the required fees.
Where is the application submitted?
The filing address for the TPS package varies from nationality to nationality. Applicants should consult the Federal Register notice announcing the particular country’s TPS in order to see where to file.
How can a person’s TPS status be Withdrawn
The Secretary may withdraw TPS if:
States since the date that the alien was granted TPS (with the exception of emergencies and unintentional absences).
annually, as specified by the Secretary.What is a person wants to travel?
An applicant granted TPS may apply for an advance parole travel document on Form I-131. The travel document will have an expiration date no later than the period or time the applicant’s country is designated for TPS. Note as well that applicants who have overstayed can face reentry bars if they leave the US.
What if an applicant’s address changes after being granted TPS?
If an applicant moves, he or she must file Form AR-11 either by mail or atwww.uscis.gov. Simply notifying the US Postal Service of the address change does not satisfy immigration requirements.
3. Ask Visalaw.com
If you have a question on immigration matters, write Askemail@example.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.
I came to the U.S. on an H-1b visa. I overstayed the time given to me on the I-94 EntryDocument. I am now married to a U.S. citizen. Will my overstaying my I-94 keep me frombeing able to get a green card in the U.S.?
A foreign national who is married to a U.S. citizen can file for a green card in the U.S. aslong as in their last entry into the U.S. they presented themselves for inspection at a port ofentry and were legally inspected and admitted or paroled into the U.S.This section of the law forgives the fact that the foreign national has not maintained theirlegal status in the U.S. and forgives any unauthorized employment by the foreign national.This means that even though you fell out of status, you are eligible to apply for a green cardbecause you were legally admitted as an H-1B nonimmigrant and you are filing for thegreen card based on the fact that you are married to a U.S. citizen.However, this section of the law does not forgive other grounds of inadmissibility, such ascriminal convictions, misrepresentation, or being subject to the unlawful presence bar. Sothe foreign national must otherwise be eligible for admission as a permanent resident.
I came to the U.S when I was 3 years old. I am now 18. I am undocumented and was wondering if I can join the military? I’m pretty sure the answer is no. However I’ve met a couple of people who were in the same situation as me once and they are now residents. What can I do?
Currently it is the policy of the U.S. military to only allow U.S. citizens and U.S. permanent residents to enlist in the military. There are a limited number of exceptions made where the foreign national has a rare skill so that it would be in the national interest to allow the person to enlist. However, officially these exceptions do not apply to undocumented foreign nationals.
Unofficially, some recruiters do allow undocumented foreign nationals to enlist either because the recruiter ignored the fact that they were undocumented or because the foreign national used fraudulent documents to enlist.
The immigration laws do allow for expedited naturalization for a foreign national that serves during a time of war, even if the foreign national is not a U.S. permanent resident. However the military often takes the stance that foreign national who lie to enlist should be dishonorably discharged and therefore are not eligible to naturalize. This results in mixed results with some foreign nationals receiving citizenship while others get deported, sometimes with other family members.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.
4. Border and Enforcement News:
Fox News Latino reports that an investigation by the Chicago-based National Immigrant Justice Center and the Midwest Coalition for Human Rights found that detainees in three immigrant detention centers in Illinois and Kentucky have been denied legal counsel, received poor medical care and rarely eat a hot meal, among other human rights violations. The report calls on the Obama administration to cut down on the number of immigrant detainees and seeks the closure of the three centers cited. U.S. Immigration and Customs Enforcement released an email statement, saying the agency “takes any allegation of misconduct or negligence at our detention facilities very seriously.” The statement asserted that there are strict standards and annual inspections at all facilities and that the three cited in the report had “received passing grades.”
CBP’s Work Force Near 60,000 in 2011
Government Security News reports that Customs and Border Protection (CBP) employed 59,820 people in fiscal year 2011 and hired more than 20,000 Border Patrol agents. The increase in Border Patrol agents prompted the Obama administration to formally announce it would reduce the number of National Guard troops stationed along the southwestern U.S. border. CBP said military veterans accounted for almost 20 percent of newly-hired agents and more than one in three of its employees is Hispanic.
http://www.gsnmagazine.com/node/25295*****CBP Chief Resigns after Less Than Two Years on JobThe Examiner (AZ) reports that Customs and Border Patrol chief Alan Bersin resigned after less than two years on the job. In a statement, Bersin declared that he was proud of the work done by CBP during his tenure, but made no mention of specifically why he would not continue as head of the agency. For the time being, Bersin will be replaced by CBP Deputy Commissioner and former head of the Border Patrol’s Tuscon sector, David Aguilar.
With New Strategy, Record Number of DeportationsNPR reports that 2011 was a record year for deportations; the last federal fiscal year saw 396,000 immigrants removed from the United States. Immigrations and Customs Enforcement (ICE) director John Morton said more than half the people deported this year were convicted of crimes. Morton highlighted ICE’s shift in enforcement focus toward criminals moving forward and said that he expects the previously announced systematic review of all immigration court cases to be completed by the middle of 2012. He also expects another 400,000 people will be deported next year and says an even larger percentage of them will have criminal records.
U.S. Sets Up Hotline for Detained ImmigrantsReuters reports that U.S. immigration authorities are setting up a telephone hotline to ensure that detainees held by local police forces partnering in the Secure Communities program are adequately informed of their rights. The initiative announced by the U.S. Immigration and Customs Enforcement agency provides a toll-free number to field queries from detainees held by state or local law enforcement agencies “if they believe they may be U.S. citizens or victims of a crime.” The hotline will be staffed 24-hours-a-day, seven days a week by ICE personnel at the Law Enforcement Support Center.
ICE Reports Record Number of I-9 Audits, Employer Arrests
Business Management reports that the U.S. Immigration and Customs Enforcement (ICE) issued a record 2,393 audit notices to inspect employers’ I-9s this year, a more than 375% increase from employers audited in 2008. ICE last year arrested and criminally prosecuted 196 owners, execs and HR managers for alleged work site immigration violations, surpassing the previous high of 135 in 2008.
In Test of Deportation Policy, 1 in 6 Offered ReprieveThe New York Times reports that prosecutors in Denver completed a test run of the first comprehensive docket review ever undertaken in the nation’s immigration courts, in which 16 prosecutors worked since December 5, 2011 to read through 7,900 deportation cases. Of the 7,900 cases, prosecutors identified more than 1,000 foreign nationals who pose no security risk and allowed them to remain in the United States. After analyzing the pilot projects in Denver and in Baltimore, Department of Homeland Security officials plan to extend the review in coming months to all of about 300,000 cases before the country’s immigration courts. The immigration court review is part of a broad effort by the administration to ease the impact of enforcement on immigrant and Latino communities by stopping some deportations while also reducing huge backlogs swamping the courts. Based on a loose projection of results from the court reviews to date, about 39,000 immigrants nationwide could see their deportations suspended. Despite the immense workload, prosecutors have responded positively to the case reviews. “It makes us feel good to know that some of these low-priority cases will be placed at the back burner,” said Corina Almeida, who, as chief counsel for Immigration and Customs Enforcement in Denver, is the senior prosecutor there.
5. News from the Courts:
The Arizona Republic reports that the U.S. Supreme Court will hear arguments in the lawsuit challenging the constitutionality of Arizona’s immigration law, Senate Bill 1070. Arizona Governor has repeatedly asked the Supreme Court to step in and reverse the lower court decision that blocked the key provisions from going into effect. The Obama administration, for its part, has expressed a wish for the Supreme Court to avoid the case at this juncture. Solicitor General Donald B. Verrilli argued that, so far, only one appellate court has dealt with the law and the Supreme Court should wait until more cases from other states have had a chance to make their way through the lower courts. No court date has been set, but justices will likely hear arguments this spring and release a decision in the summer.
Bloomberg reports that in a request for a court order blocking the Utah immigration measures, the federal government argued that Utah violated the U.S. Constitution by passing a set of immigration laws the state’s governor has called the “Utah solution.” The various states’ efforts to create their own immigration policies conflict with the federal government’s exclusive power to regulate immigration, according to the filing.
Utah Immigration Laws Should Be Blocked, U.S. Government Argues
Top Court Considers Rights of U.S. Permanent ResidentsAgence France Presse reports that the Supreme Court has begun hearing oral arguments in three cases on the rights of foreign-born permanent residents of the United States, two of whom face deportation and a third who was denied re-entry after traveling abroad. The cases center around the U.S. Immigration and Nationality Act, which Congress amended in 1996 to make it easier to deport people determined to be “criminal aliens.” The court first heard two consolidated cases – Holder v. Gutierrez and Holder v. Sawyers – both of which challenged the Department of Justice’s decision to deport them on the grounds that time spent as minors living with permanent resident parents should count toward the requisite five years needed by a lawbreaking permanent resident to avoid deportation. In the third case, Panagis Vartelas, a Greek-born legal permanent resident since 1989, is challenging a 2003 denial of re-entry on the basis of a 1994 conviction of a “crime of moral turpitude.” Vartelas’ lawyers argued that the law should not apply retroactively.
6. News Bytes:
Majority of Americans Favor Strict Immigration Laws in their State, but Support is Decreasing
The Houston Chronicle reports although a majority of Americans still support having an immigration law in their state like the one enacted in Arizona, support for tough immigration laws is at its low point since the law’s passing last spring. A Rasmussen Reports poll shows 52 percent of Americans favor an Arizona-style law in their state, with 34 percent disapproving of such a law. That figure is down from 57 percent in February.
http://blog.chron.com/txpotomac/2011/12/majority-of-americans-support-strict- immigration-laws-in-their-state-but-support-is-decreasing/*****Feds Sever Ties with Maricopa County Sherriff’s OfficeThe Arizona Republic reports that the Department of Homeland Security said it is cutting virtually all ties with the Maricopa County Sheriff’s Office (MCSO) after a Justice Department investigation found the sheriff’s office employs “discriminatory policing practices.” John Morton, director of Immigration and Customs Enforcement (ICE), said in a letter to Maricopa County Attorney Bill Montgomery that ICE is removing all immigration detainees from MCSO jails and will no longer respond to calls from MCSO deputies involving traffic stops, civil infractions or “other minor offenses.” Victoria Lopez, program director at the American Civil Liberties Union of Arizona, praised the decision to cut off ties with MCSO. Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a think tank in Washington D.C. that favors strict enforcement, said enforcement in Maricopa County will suffer.
The Associated Press reports that the Homeland Security Department announced in a letter to Sen. Jon Kyl (R-AZ) that it will use 50 immigration agents to screen jail inmates in Maricopa County Jails. The move comes after the Homeland Security Department revoked the Maricopa County Sheriff’s access to its systems. The letter from Homeland Security Assistant Secretary Nelson Peacock, obtained by the Associated Press, says the 50 dedicated agents will “screen, identify, apprehend and remove criminal aliens” found in Maricopa County jails. Sheriff Joe Arpaio strongly disputed the Justice Department report, which found his office committed a wide range of civil rights violations against Latinos, and said that the dedicated agents won’t come close to replacing the 91 officers who had been doing the work.
The New York Times reports that a study conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City, found immigrants frequently receive “inadequate” legal assistance. Researchers polled judges in five immigration courts, three in New York City and two in the northern suburbs, about the representatives who appeared before them. Immigrants received “inadequate” legal assistance in 33 percent of the cases between mid-2010 and mid-2011 and “grossly inadequate” assistance in 14 percent of the cases, the judges said.
Judge Katzmann blames “predatory lawyers” who are not familiar with immigration law for much of the poor representation. The report also found that many immigrants do not have representation at all, often stemming from immigrants being detained and held away from their homes. The Obama administration has acknowledged the problem of inadequate representation as a result of detentions. In 2009, immigration officials announced plans to overhaul the detention system, including providing more detention capacity in and around cities with large immigrant populations, like New York, so detainees are closer to their families and lawyers.
Study: Judges Have a Bleak View of Lawyers Representing Immigrants
Woman Sues Arizona Officials over Treatment While Pregnant in Jail
KPHO News (AZ) reports that Miriam Mendiola-Martinez, a 37 year old mother of two, filed a lawsuit in federal court aimed at Maricopa County Sheriff Joe Arpaio, his office, the Maricopa Medical Center and its staff for allegedly mistreating her while she was pregnant in jail. Mendiola-Martinez went into early labor with her son while her identity theft case was pending. As with all inmates at Maricopa Medical Center, she was chained to her hospital bed during labor and immediately following a C-section. Joy Bertrand, Mendiola-Martinez’s attorney, said her client was experienced great discomfort and was denied relief by a guard. The lawsuit alleges indifference by multiple law enforcement and hospital personnel as to Mendiola-Martinez’s medical needs. All defendants in the suit have yet to be served, and the case is expected to span several months in federal court.
Arab American Institute Asks for Asylum for Syrians in U.S.Politico (DC) reports that an Arab-American group is asking the Obama Administration for temporary protected status for Syrian citizens currently in the United States in light of the Syrian uprising. Some Syrians and Syrian-Americans who have been critical of the regime have seen their families attacked, and the Syrian ambassadors to the U.S. and U.N. have been investigated for spying on Syrian-Americans. The Secretary of Homeland Security may provide temporary asylum to people in America who can’t safely return to their home countries, particularly students, tourists and other temporary U.S. visitors, according to the letter .
States Implement New E-Verify Laws
The Epoch Times reports that five states have new E-Verify laws in effect for 2012: Louisiana, Tennessee, South Carolina, and Georgia will make it mandatory for employers to use the system for new hires; California took the opposite stance, making it illegal for municipalities to force companies to use the system. E-Verify, run by U.S. Citizenship and Immigration Services (USCIS), is a system made to cross reference employer’s new hires to confirm that they are eligible to work in the United States. California joins Illinois as the only two states restricting the use of E-Verify, citing the system’s inaccuracy and economic concerns for doing so. Currently, 18 states have legislation in place that requires the use of E-Verify in some capacity.
Romney Says He Would Veto DREAM ActThe Associated Press reports that at an Ohio campaign stop Republican presidential candidate Mitt Romney said that he would veto legislation that would allow certain illegallypresent residents to become American citizens. Romney has said before that he would oppose the legislation, known as the DREAM Act, but this was the first time he’s explicitly said he would veto it. Romney said he would support provisions of the bill that allow people to earn permanent residency if they serve in the military.
Immigration Law In Effect While Parts of it on Hold
WCBD (SC) reports that South Carolina’s new immigration law is now in effect though many of its controversial provisions remain on court-mandated hold. Businesses are now required to use E-Verify, an online program that allows employers to input information from required I-9 hiring forms and find out a new employee’s legal work status. Employers who are not registered to use E-Verify will have a grace period until July. After that, businesses that violate the law will get a year probation and have their license revoked for repeat violations.
The Los Angeles Times reports that the Obama administration announced a proposed new regulation that would allow certain illegally present immigrants to remain in the United States while applying for legal status. As the system stands, people who leave the country to apply for a green card, depending on how long they’ve lived illegally in the United States, are barred from returning for up to 10 years. They can claim that their absence would pose a hardship for their spouse or parent and ask the Department of Homeland Security to waive the re-entry restrictions. To do this, though, they must travel to a consular office abroad and begin a process that can take months or even years. Under the proposed rule, which would not require action by Congress, people would be allowed to file requests for hardship waivers in the United States, and thus could stay with their families while their requests are adjudicated.
State Must Cover Legal Immigrants
The Boston Globe reports that the Massachusetts Supreme Court said a 2009 law that cut legal immigrants from the state subsidized insurance program, known as Commonwealth Care, “violates their rights to equal protection under the Massachusetts Constitution.” In 2009, at the height of the recession, the Massachusetts Legislature cut about 26,000 legal immigrants from Commonwealth Care to save $130 million. It created separate health care plans for immigrants called the Commonwealth Care Bridge Program, which severely scaled- back coverage and was available only to immigrants previously enrolled in Commonwealth Care, excluding new legal immigrants. State officials promised to take fast action on the court decision, which could affect up to 37,400 immigrants who have had legal status for less than five years.
Obama Rule Would Let Undocumented Stay in U.S. During Application
Federal Immigration Enforcement is Mandatory, Memo Says
The Los Angeles Times reports that in a 9 page memo dated Oct. 2, 2010, and released recently, federal officials determined that choices available to local law enforcement agencies that wish to decline or limit their participation in the Secure Communities immigration enforcement program would be “streamlined” or “eliminated,” making the information-sharing program mandatory. Launched in 2008, Secure Communities was promoted to local and state leaders as a way to focus immigration enforcement efforts on “serious convicted criminals.” The program, however, has come under fire because a large percentage of immigrants caught up in the system were never convicted of a crime or were low-level offenders.
Though federal officials initially said there were ways for state and local officials to drop out of the program, an Immigration and Customs Enforcement spokeswoman said the memo was not inconsistent with prior policy. “As the legal memo explains, once a state or local government voluntarily submits fingerprint information to federal law enforcement officials, it cannot dictate how this information is shared to protect public safety,” spokeswoman Virginia Kice said in an email.
Longtime Rep. Elton Gallegly Will Retire
The Los Angeles Times reports that Elton, Gallegly, a veteran Republican member of Congress, will not seek reelection this year, avoiding a difficult race with another GOP incumbent after the redrawing of California’s political boundaries placed their homes in the same district. Gallegly, 67, has served in the U.S. House since 1987 and is best known for his efforts to crack down on illegal immigration. He recently became chairman of the House judiciary subcommittee that oversees immigration. “It seemed like a natural time,” Gallegly said in a telephone interview. “While there’s still a lot of challenges ahead…one day I realized the business is never going to be finished. There’s always going to be another mountain to climb.”
Administration Extends Salvadoran Deportation Freeze
Politico (DC) reports that the Obama administration has extended temporary protected status to El Salvadoran nationals through late 2013, shielding them from deportation and forcible return to their home country. The Department of Homeland Security cites ongoing disruptions from a series of earthquakes in 2001, concluding that “El Salvador remains unable, temporarily, to handle adequately the return of its nationals.” The protected status designation currently applies to 215,000 Salvadorans living in the U.S. illegally.http://www.politico.com/politico44/2012/01/admin-extends-salvadoran-deportation-freeze- 110304.html
Mitt Romney Touts Endorsement by Architect of Tough State Immigration Laws
Fox News Latino reports that Kris Kobach, Kansas’ Secretary of State who helped author the nation’s toughest state-level immigration laws, announced his endorsement for GOP presidential contender Mitt Romney. Romney promptly noted the endorsement on his website saying, “I’m so proud to earn Kris’s support.” In his statement endorsing Romney, Kobach said, “Mitt Romney is the candidate who will finally secure the borders and put a stop to the magnets, like in-state tuition, that encourage illegal aliens to remain in our country unlawfully.” Kobach’s endorsement, and Romney’s embrace of it, drew strong criticism from immigration advocacy groups, who described it as proof of the GOP candidate’s nativism. “With his campaign trumpeting Kris Kobach’s endorsement, Mitt Romney’s descent into the dark clutches of radical nativism is complete,” said Frank Sharry, executive director of America’s Voice, which is based in Washington D.C.
Gallup Poll: Immigration Issue Roils VotersPolitico (DC) reports that the majority of Americans say they are dissatisfied with the level of immigration into the country, and more than four out of 10 of those concerned about the issue say they want to see fewer foreigners entering the U.S., according to a Gallup Poll. The poll found that only 28 percent of Americans currently feel satisfied about the level of immigration into the U.S. According to Gallup, immigration is the third-highest-ranking concern among 17 issues that the polling company asked about.
Obama Unveils Plan to Boost Tourism
The Associated Press reports that President Obama announced an executive order at Orlando’s Walt Disney World aiming to increase tourist visa processing in China and Brazil and take other steps including promoting national parks and adding business executives to a tourism advocacy board. The White House says that more than 1 million U.S. jobs could be created over the next decade, according to industry projections, if the U.S. increases its share of the international travel market. President Obama’s tourism and travel announcement is part of the president’s “We Can’t Wait” initiative aimed at promoting executive actions Obama can take without congressional approval.
7. Washington Watch:
U.S. News & World Reports reports that the Department of Homeland Security (DHS) responded to a November 4 subpoena demanding the names and identifying information of those who have been flagged by the immigration-status checking program Secure Communities yet not detained or placed in deportation hearings. “I am pleased DHS has finally decided to work with the Committee and comply with the subpoena,” House Judiciary Committee Chairman Lamar Smith said in a press release. Smith and committee Republicans want the data so they can assess for themselves whether Immigration and Customs Enforcement was right to release the estimated 200,000 individuals pinged by Secure Communities but let go. According to DHS, those estimated 200,000 people released may not all be illegally present immigrants since the DHS database can return information on legal residents and naturalized U.S. citizens as well, something that raised privacy concerns for Judiciary Committee Democrats.
Senators Unveil New Irish Visa Bills
The Irish Voice reports that New York Senator Charles Schumer introduced an immigration bill to the Senate which will potentially permit 10,000 Irish citizens, per year, to live and work in the U.S. on a new E-3 non-immigrant visa. The Fairness for High-Skilled Immigrants Act of 2011 would allow undocumented Irish to apply for an existing waiver of inadmissibility which exists under the current E-3 law for Australians. The bill is modeled on the Australian E-3 visa program which allows up to 10,000 Australian citizens and their spouses to immigrate to the U.S. once they secure a job offer. Under the current program citizens availing of the visa must be performing services in a specialty occupation and hold the minimum attainment of a bachelor’s degree.
The Republican reports that in an attempt to ease the efforts of Irish citizens seeking specialty work in the U.S., Sen. Scott Brown (R-MA) and Sen. Mark Kirk (R-IL) have introduced a narrowly-focused bill. The Irish Immigration Reform and Encouragement Act of 2011, which is an alternate version of a large bill introduced by Sen. Charles Schumer (D-N.Y.), adds the Republic of Ireland to the E-3 visa program, allowing more than 10,000 employment visas that can be renewed an unlimited number of times. According to Sen. Brown’s office, the bill
Lautenberg Amendment Extended
Immigration Impact reports that an extension of the Lautenberg Amendment was included in the fiscal year 2012 spending bill the President signed before the holidays. The Lautenberg Amendment, originally enacted as part of the 1990 Foreign Operationsrecognizes the damage done to Irish immigration prospects in theImmigration and Nationality Act of 1965 and therefore adds the Republic of Ireland into theE-3 visa program.
Appropriations Bill, established a presumption of eligibility for refugee status for certain categories of people from Southeast Asia, as well as religious minorities from the Former Soviet Union (FSU) seeking to resettle as refugees in the United States. Today, the Lautenberg Amendment serves primarily to facilitate the resettlement of Jews, Christians, Baha’is, and other religious minorities fleeing Iran though it continues to cover religious minorities from the FSU. Strong bi-partisan support and a wide array of religious groups helped extend the amendment.
Advocate for Hispanics to Join President’s Top Aides
The Wall Street Journal reports that the White House named Cecilia Muñoz, the president’s point person on immigration and outreach to the Hispanic community, as director of the Domestic Policy Council. Ms. Muñoz is currently the director of intergovernmental affairs, serving as a liaison between the White House and mayors, governors, and other officials. In her new role, she’ll oversee policy making on a wide range of domestic issues including education, energy and health care in addition to managing immigration policy. Before coming to the White House, Ms. Muñoz was a senior vice president at the National Council of La Raza, the nation’s largest Latino advocacy group.
8. Updates from the Visalaw.com Blogs
- Juan Williams: Luis Gutierrez Best Member of Congress for 2011
- Arizona v. United States Going to the Supremes
- January Visa Bulletin Rundown
- Republican Wishful Thinking Regarding Hispanics Not Coming True
- Study Shows Immigration Raises Wages for American Workers
- DOJ Issues Scathing Report on Sheriff Joe
- Negotiations with Grassley Over Priority Date Bill Falter
- NFAP: Immigrants Behind Half of Venture Funded Start Ups
- Sheriff Joe Sued for Shackling Pregnant Woman in Labor
- Perry Brings Sheriff Joe to Iowa
- Judge Blocks Sections of South Carolina Law
- Obama Enjoys Big Edge With Hispanics (if They Bother to Vote)
- Romney Says He Would Veto Dream Act
- All-American Track Star Latest Dreamer Slated for Deportation
- US Citizen Teenager Deported to Colombia
- What Would Reagan Do?
- New Waiver Policy Drawing Praise for Administration
- Backed in to a Corner
- India, China EB-2 Numbers Advance a Year
- Notarios Already on the Prowl
- Romney Touts Endorsement of Architect of Arizona, Alabama Laws
- Despite Prosecutorial Discretion Policy, Same Sex Spouses of US Citizens Still Facing
- One More Month of Good News for EB-2 Indians and Chinese
- Is Immigration Good for America?
- Obama Announces Plan to Create Million Jobs By Easing Improving Tourist Visa
- Only 1 in 6 Deportation Cases Benefiting from Prosecutorial Discretion
- Romney Thinks Immigrants Will Embrace “Self-Deportation”
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: February 2012
Family 1st – World numbers, China and India have• San Diego Bakery Fined $400K
• Justice Department Reaches Settlement in Discrimination Case with Virginia Ship
• DOJ Announces Another IRCA Discrimination Settlement • Teaching Hospital Fined Under IRCA Discrimination Rules
- 5th Circuit Upholds Louisiana Bar on Foreign Nurses
- The History of IMGs in America
- Massachusetts Health Plan Must Cover Legal Immigrants
• DEPORTATIONS SOAR NATIONWIDE BUT ESPECIALLY IN GEORGIA-ALABAMA AREA • H-1B CAP EXHAUSTED, SO NOW WHAT?
• NFAP: IMMIGRANTS BEHIND HALF OF VENTURE FUNDED START-UPS
jumped nine weeks to 24 December 04; 1week advance for Mexico to 22 April 93; Philippines advanced five weeks to 22 May 97.Family 2A – World numbers, China, India, and the Philippines have jumped seven weeks to08 June 09; Mexico advanced seven weeks to 08 May 09.Family 2B – World numbers, China, and India advanced 5 weeks to 15 October 03; Mexicostalled at 01 December 92; Philippines jumped a month to 01 November 01.Family 3rd – World numbers, China, and India jumped one month to 01 December 01; 1 anda half week advance for Mexico to 01 January 93; Philippines moved one week to 22 July92.Family 4th – World numbers, China, and India jumped three weeks to 08 September 00;Mexico advanced one week to 15 May 96; Philippines advanced three weeks to 01November 88.
Employment 1st – still current in all categories.Employment 2nd – World numbers, Mexico, and Philippines still current, China and Indiajumped one year to 01 January 10.Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 22February 06; China jumped six weeks to 01 December 04; India moved one week to 15 Aug02.Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced threeweeks to 22 February 06; China stalled at 22 April 03; two week advance for India to 15August 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 February. 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 January 6th. 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 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
Number 41 Volume IX Washington, D.C.
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:
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for
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- Chargeability mainland INDIA MEXICO PHILIPPINES Sponsored Areas Except born
- F2A 08JUN09
- F2B 15OCT03
- F3 01DEC01
- F4 08SEP00
22DEC04 22DEC04 22APR93 22MAY97
08JUN09 08JUN09 08MAY09 08JUN09
15OCT03 15OCT03 01DEC92 01NOV01
01DEC01 01DEC01 01JAN93 22JUL92
08SEP00 08SEP00 15MAY96 01NOV88
*NOTE: For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08MAY09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08MAY09 and earlier than 08JUN09. (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:
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.)
Chargeability mainland INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN1001JAN10C C
Areas Except born Those Listed
Other Workers 22FEB06
01DEC04 15AUG02 22FEB06 22FEB06
22APR03 15AUG02 22FEB06 22FEB06
4th C C C C C
Certain Religious Workers
Targeted Employment Areas/ Regional Centers and Pilot ProgramsCCC
CC*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 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:
All DV Chargeability Areas Except Those Listed Separately
AFRICA32,000Except: Egypt 21,000 Ethiopia 21,500 Nigeria 16,000 ASIA
Except: Uzbekistan 16,500 NORTH AMERICA (BAHAMAS)
775SOUTH AMERICA, and the CARIBBEAN775Entitlement 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 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:
RegionAll DV Chargeability Areas Except Those Listed Separately
35,800Except: Egypt 26,000 Ethiopia 26,000 Nigeria 17,500 ASIA
NORTH AMERICA (BAHAMAS)7
925SOUTH AMERICA, and the CARIBBEAN925D. VISA AVAILABILITY IN THE COMING MONTHS
FAMILY-sponsored categories (monthly)
F1: three to five weeks F2A: one to two months F2B: three to four weeks F3: one to three weeks F4: up to one month
EMPLOYMENT-based categories (monthly) Employment First: Current Employment Second:
China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.
Worldwide: up to one month China: up to one month India: up to two weeks Mexico: up to one month Philippines: up to one month
Employment Fourth: Current
Employment Fifth: Current
Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time. Those categories with a “Current” projection will remain so for the foreseeable future.
E. 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:
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:
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:
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:
(This address cannot be used to subscribe to the Visa Bulletin.)
Department of State Publication 9514 CA/VO: January 6, 2012