March 2010

Posted on: March 5th, 2010
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Siskind’s Immigration Bulletin – March 8, 2010

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: Aaron Markowitz . Contributors: Aaron Markowitz, Laura Zapata.

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:

I write this the morning after the 82nd Academy Awards ceremony that caps a banner year in Hollywood. As has been the case for many years, immigrants were well represented on the red carpet and a number of winners for the evening were winners. For example, Best Supporting Actor went to Austrian immigrant Christoph Waltz for his role in Inglourious Basterds.

But all is not good when it comes to arts immigration. USCIS has all but declared war on foreign artists seeking visas to come to the US. The denial rate in arts cases has skyrocketed in the last few years and we are seeing case denials and requests for evidence that would have been “slam dunks” in prior years.

USCIS examiners – often with no background in the artistic categories where they sit in judgment – seem to be inventing novel standards for applications that are not based in the law and are not consistent with the intentions of Congress. The Ninth Circuit Court of Appeals recognized this problem in a related extraordinary ability case decided last week and ordered USCIS to stop inventing standards in EB-1 cases. Hopefully, the message will be heard.

In the mean time, I am working with my friend and fellow immigration lawyer Rita Sostrin to develop a new Arts, Entertainment and Sports Immigration Task Force organization to advocate for more workable rules in this field and to assist lawyers working on these cases more effectively represent their clients. If you are interested in participating in this group, please email me at gsiskind@visalaw.com or Rita at rsostrin@sostrinimmigration.com .

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In firm news, this past week I was a panelist on two programs. I spoke on an American Immigration Lawyers Association teleseminar on Q visas for international cultural exchange visitors. I’ve used the occasion to expand and update my ABCs of Immigration article on the topic and it is included in this issue.

I also spoke at the Tennessee Bar Association’s Legal Technology conference in Nashville. I spoke on blogging and social networking tools and co-presented with my good friend Ross Kodner who is one of the country’s leading legal technology consultants. Ross’ bio can be found at http://www.microlaw.com/ross.html .

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Finally, we would invite readers interested in becoming Siskind Susser clients to contact us. My email is gsiskind@visalaw.com and my phone number is 901-682- 6455 . Our firm assists clients locating anywhere in the US and we have attorneys with expertise in most areas of immigration law. You can also request an appointment by filling out a request form at http://www.visalaw.com/intake.html.

Regards,

Greg Siskind

2. The ABC’S of Immigration Law: Q-1 International Exchange Visitors

What is a Q Visa?

A Q visa is used by international cultural exchange visitors seeking to enter the US to participate in international cultural exchange programs. The Q visa is a creation of the 1990 Immigration Act and many believe it was as a result of a strong push by the Disney company which uses the visa for its EPCOT park as well as other locations in the theme park.

Who can petition for Q visas?

Qualified employers include US or foreign firms, corporations, non-profit organizations, or other legal entities (including US branches, subsidiaries, affiliates and franchises) which administer an international cultural exchange program designated by USCIS.

How is a Q exchange program approved?

Just as J-1 exchange programs must be approved by the State Department, Q exchange programs must be approved by USCIS. However, the mechanism for obtaining this approval is simply for the program to provide documentation regarding the program accompanied by a petition for an initial Q-1 visa for at least one participant. The Q-1 visa application will only be approved if the Q program is approved. Q programs can submit additional I-129 petitions for exchange visitors not included in the initial petition.

For how long is a Q exchange program valid?

A Q international exchange program will be approved for the length of the program up to 15 months plus an additional 30 days to allow participants time to make travel arrangements.

What are the requirements for the Q-1 program?

Q programs must meet all of the following requirements:
1. Theprogrammustbeaccessibletothepublic.Thatmeansitmusttakeplace

in a school, museum, business or other place where the public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. Program activities are not to take place in private homes or isolated business settings not directly accessible to the public.

  1. Theprogrammusthaveaculturalcomponent.Theculturalcomponentmust be an essential and integral part of the visitor’s employment or training. The cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the cultural visitor’s country of nationality. A cultural component may include seminars, courses, lecture series, or language camps. Performances and serving as exhibit guides and docents are other examples.
  2. Theemploymentoftheexchangevisitormustnotbeindependentofthe cultural component of the international exchange program.

What documentation does a program application require?

Q program applications must contain the following documents:
1. Theemployermaintainsanestablishedinternationalculturalexchange

program;

  1. Theprogramhasdesignatedaqualifiedemployeeasarepresentativewho will be responsible for administering the international cultural exchange program and who will serve as a liaison to USCIS;
  2. ProoftheemployerisactivelydoingbusinessintheUS.Doingbusiness means the “regular, systematic, and continuous provision of goods and/or services (including lectures, seminars and other types of cultural programs) by a qualified employer which has employees, and does not include the mere presence of an agent or office of the qualifying employer”;
  3. Documentation that the program will offer the alien wages and working conditions comparable to those accorded to similarly employed domestic workers; and
  4. Evidence the employer has the financial ability to remunerate the participant.
  5. A certification by the employer that contains the following:
    • ‐ A list containing the date of birth, country of nationality, level of education, position title, and a brief job description for each international exchange visitor in the petition;
    • ‐ Verification and certification that the participants are qualified to perform the service or labor, or receive the type of training, described in the petition; and
    • ‐ A report of the visitors’ wages and certification that they are comparable to similarly employed domestic workers

How long can a person come in Q status?

Q-1 non-immigrants are admitted for the duration of the Q program or fifteen months, whichever is shorter.

What kinds of activities can a Q visa holder engage in while in the US?

A Q-1 non-immigrant can enter the US to participate in an approved Q program in order to engage in practical training, employment and the sharing of the history, culture and traditions of the country of the alien’s nationality.

Can a person who has previously had Q-1 status come back again as a Q-1 visitor?
Q-1s can be readmitted in Q-1 status if the individual has resided and been physically present outside the US for the immediate prior year. Brief trips to the US do not break the continuity of the one year of foreign residency.

How does one apply for Q-1 non-immigrant status?

An initial Q-1 petition is filed using Form I-129 with the service center having jurisdiction over the state where the employment will take place. Once the program and Q-1 classification are approved by USCIS, USCIS will notify the indicated consulate or port of entry where the Q-1 applicant will apply for a visa or admission to the US. The notice will include the name of the visitors, their classification and the petition’s period of validity.

Is premium processing available?
As of the writing of the article, premium processing is available for Q-1 cases. Note, however, that USCIS occasionally adds or removes non-immigrant and immigrant categories from the list of premium processing-eligible cases.

Are substitutions permitted?

Substitution or replacements of participants in a Q program are permitted. To accomplish this, employers do not need to submit a new I-129 petition. The substituting visitor must meet the same qualification requirements as the Q-1 non- immigrant met in the initial petition. Employers can request the substitution or replacement by sending a letter to the consular officer at the consulate where the visa application will be submitted (or the port of entry for visa-exempt applicants). The letter must be accompanied by a copy of the program approval notice and it should also include the date of birth, country of nationality, level of education, and position title of each prospective Q-1 visitor. The letter should also certify that each Q-1 applicant is qualified to perform the service or labor or receive the type of training described in the approved petition. Finally, the letter should indicate each applicant’s wages and certify that the wages and working conditions are comparable to those provided similarly employed domestic workers.

What are the requirements for the Q-1 non-immigrant applicant?

A Q-1 applicant must be bona fide nonimmigrants who is

  1. Atleast18yearsoldatthetimethepetitionisfiled;
  2. Isqualifiedtoperformtheserviceorlabororreceivethetypeoftraining specified in the petition;
  3. Hastheabilitytocommunicateeffectivelyabouttheculturalattributesofhis or her country of nationality to the American public; and
  4. HasresidedandbeenphysicallypresentoutsideoftheUSfortheimmediate prior year if the person previously had a Q-1 visa.

Does a Q-1 employer need to pay a required wage?

Q-1 employers must pay the exchange visitor wages and provide working conditions comparable to those accorded to domestic workers similarly employed in the geographical area of the alien’s employment. Employers certify this in their petitions.

Can a petitioner file for multiple applicants in the same petition package? What if only some of the applicants are approvable?
A Q program may include more than one participant in each Q petition. The petitioner must include the names, dates of birth, nationalities and other identifying information required on the petition for each participant. The petitioner also needs to indicate the US consulate or port of entry (if a visitor is visa-exempt) where a visitor will apply for a Q-1.

If some visitors are approved, but others are not approvable, USCIS may approve in part and deny in part.

Can Q-1 non-immigrants work at multiple locations?

Yes. However, the employer must provide an itinerary listing the dates and locations of the services, labor or training.

Can concurrent Q-1 petitions be filed on behalf of multiple employers?

Yes. If the exchange visitor will perform services or receive training from more than one employer, each employer may file a separate petition. Q-1 non-immigrants can work part-time for multiple employers as long as each employer has an approved petition for the individual.

Can Q-1 non-immigrants change employers? How does that affect their time they can be in Q-1 status?
Yes. Applicants can have a new employer file a new I-129 on their behalf. However, the total period of time the visitor can stay in the US is still limited to 15 months.

Does a Q-1 visa holder have to have a foreign residence?

Yes. International cultural exchange visitors must have a residence in a foreign country which they have no intention of abandoning.

Can spouses or children be admitted with the Q-1 visa holder?

There is no dependent provision for spouses and children, but they may be otherwise admissible as visitors.

When can a Q-1 petition be revoked?

The approval of the Q-1 petition is automatically revoked if the employer goes out of business, files a written withdrawal of the petition or terminates the approved program prior to the expiration date. USCIS can revoke on notice if it finds that the visitor is no longer employed by the petitioner in the capacity specified in the petition or no longer receiving the specified training. USCIS can also revoke if it learns that there were incorrect representations made in the petition, the petitioner violated the terms and conditions of the petition or USCIS mistakenly approved the case.

What documentation does a Q-1 non-immigrant provide to demonstrate employment authorization for I-9 purposes?
While employers cannot specify which documents an employee must show to demonstrate employment authorization, note that Q-1s do not receive employment authorization documents and need only provide a valid I-94 to work. However, the I- 94 must be for the specific sponsoring employer.

3. Ask Visalaw.com

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

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

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1) Question:

I am in the U.S. on a J-1 and my wife is here on a J-2. She has work authorization but it will be expiring soon. Is there a limit on the number of times she can renew the work authorization or can she continue to renew it for as long as I am on the J-1.

Answer:

There is no limit on the number of renewals of work authorization for a J-2 as long as the spouse is maintaining their J-1 status.

2) Question:

I am in the U.S. on an H-1B visa. My son is here on an H-4. But he is turning 18 this year. Will he be able to stay in H-4 status once he turns 18?

Answer:

You son will remain eligible for an H-4 up until his 21st birthday as long as you remain in H-1B status, he remains unmarried, and he does not work.

3) Question:

I am a U.S. citizen. I filed an I-130 petition for my sister and my parents in 2007. My parents are now permanent residents and are considering filing an I-130 petition for my sister. Can they file if I already have a petition? If they file will we lose the 2007 priority date?

Answer:

A foreign national can have more than one I-130 filed for them at the same time from different relatives. Your parents can file a new I-130 for your sister and they should, since the wait for a visa for the daughter of a permanent resident is shorter than the wait for the sister of a U.S. citizen.

Your parents will not be able to capture your 2007 priority date with their I-130, so their I-130 will have a 2010 priority date. But your petition will continue to have a 2007 priority date.

4) Question:

I am in the U.S. on an H-1B visa. I have an EB-2 I-485. My wife has been living outside the U.S. so I was not able to file an I-485 for her, but now I want her to join me here. I will run out of H-1B time at the end of 2010. Can my wife still come as an H-4 and can I still file an I-485 for her?

Answer:

Your H-1B can be extended beyond the 6th year once it has been more than a year since either the Labor Certification or the I-140 was filed. You will be able to get one year extensions. Once your I-140 is approved you can get 3 year extensions, even if it has been less than a year since it was filed.

A foreign national is eligible for an H-4 for as long as their spouse is in H-1B status. So as long as you maintain your H-1B status, your wife would be eligible for an H-4 visa.

However, if you applied for an Employment Authorization Document, working on the EAD will stop H-1B status. But just having the EAD does not mean that you are working on the EAD. If you are still working in the H-1B position (and are otherwise meeting the requirements of the H-1B) and you have not executed a new I-9 using the EAD or traveled on an Advance Parole Document, then they would still be in H- 1B status. Even if you are no longer in H-1B status you would be able to return to H- 1B status by traveling abroad and returning on your H-1B visa or possibly by filing an extension of H-1B status (talk to your immigration lawyer about whether this is an option).

If the DOS visa bulletin has moved back since you filed the I-485 so that a visa is no longer available, then you will not be able to file an I-485 for your wife until a visa is available under the DOS Visa Bulletin for the I-140.

4. Border and Enforcement News:

DHS figures show deportations doubled over ten years

The Medill Reports in Chicago is reporting that, according to the Department of Homeland Security, the rate of deportations have almost doubled in the past decade.

One-third of deportations in 2008 were due to criminal activity. Two thirds of crimes that resulted in deportation included illegal drug activity, immigration violation, and assault. The other two-thirds of immigrants who did not commit a crime were deported as a result of workplace raids, applying for and being denied certain immigration documentation, and/or air travel, where they were subject to identification verification.

The budgets of those agencies charged with enforcing deportations have risen substantially over a seven-year span. Between 2002 and 2008 The U.S. Immigration and Customs Enforcement and the U.S. Customs and Border Protection budgets nearly doubled from $7.5 billion to $14.5 billion.

Despite massive deportation efforts, the number of undocumented immigrants in the U.S. did not decline substantially over the past 10 years—until recently. The Department of Homeland Security and the Pew Hispanic Center estimate that since 2000 the number of undocumented migrants increased by more than 3 million people.

http://news.medill.northwestern.edu/chicago/news.aspx?id=157904

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U. S. Customs and Border Protection Officers Thwart Human Smuggling Attempt

U. S. Customs and Border Protection Office (CBP) is reporting that three Chinese nationals were apprehended as they attempted to enter the United States illegally while inside the sleeper cab of a commercial truck.

The truck was operated by a Canadian citizen. As he applied for admission into the United States at the Lewiston, N.Y border with Canada, the CBP officers selected the shipment for a random secondary inspection. The inspection resulted in the discovery of three Chinese nationals.

All four individuals were put under Immigration and Customs Enforcement (ICE) custody for further investigation and prosecution. The three Chinese citizens were convicted of illegal entry into the United States and are being detained pending a deportation hearing before an immigration judge. The Canadian truck driver remains in ICE custody while awaiting prosecution on federal charges. http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/02232010_5.xml *****

U.S. Citizen Suspected of Smuggling Unauthorized Migrants in Florida

The U. S. Customs and Border Protection Office (CBP) reports that a U.S Citizen is suspected of smuggling migrants in the Florida area. Border Patrol agents in Miami intercepted undocumented migrants after reaching Florida by boat.

Border Patrol agents interviewed and processed one Dominican and four Haitian men, who appeared to be in good health.

As a result of an investigation focused on this interception, the Assistant U.S. Attorney’s Office has prosecuted the U.S. citizen suspected of smuggling the migrants. http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/02232010_8.xml

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5. News from the Courts:

Immigration cases flooding U.S. courts

The Arizona Republic is reporting that stepped-up immigration enforcement is overloading U.S. immigration courts and undermining the ability of judges to rule fairly because of pressure to decide cases quickly. The influx of cases is creating backlogs that, in some places, will take years for judges to decide on immigrants’ status.

Although the long waits could aid some immigrants with weak cases who hope immigration reform arrives before their hearings do, for many others the delays also can hurt their cases. Witnesses could move, or family members with ties to the U.S. could die. Deported migrants can be separated from wives and children in the U.S. And those denied asylum could face persecution, torture or even death.

The immigration judges aren’t part of the federal judiciary. Instead, they work for the Justice Department, which also employs the prosecutors, in the government’s executive branch. That makes them not truly independent, which also could add to pressure to move cases quickly, said Eli Kantor, an immigration lawyer in Beverly Hills.

Suspected illegal immigrants charged with serious crimes are turned over to Immigration and Customs Enforcement and held in detention centers for possible deportation after their criminal cases are resolved. This adds to the burden of the immigration judges. Those charged with minor crimes are also often turned over to ICE, and many agree to leave voluntarily. Those who choose to fight deportation are often released on bond and given a notice to appear in immigration court.

Most of the cases before the immigration courts involve people who have been living in the U.S. for more than 10 years and have U.S. citizen children. Those two factors make them eligible for ‘cancellation of removal.’ To win their cases, immigrants must prove to a judge that their deportation would cause ‘exceptional and extremely unusual hardship’ to a U.S. citizen spouse, parent or child. Immigration lawyers say the legal standard is extremely difficult to meet, especially if judges are rushing through cases.

A 15-month study released in June by the Chicago Appleseed Fund for Justice concluded that immigration judges can no longer function properly because of the crush of new cases. ‘Sometimes delay works to the advantage of an individual, and sometimes delay has adverse effects,’ Executive Director Malcolm Rich said. ‘But from a policy perspective, it says we have a court system that is in trouble and is dysfunctional.’

Nationally, according to the Syracuse analysis, the total number of pending cases in immigration courts in the past 10 years grew 64 percent. The number of immigration cases in Phoenix, for example, has risen 12 percent since last year alone, and 49 percent since 2007. The increase in cases stems from the federal government’s crackdown on illegal immigration. The government has hired thousands of new Border Patrol and Immigration and Customs Enforcement agents in recent years to enforce immigration laws. It also has enlisted local law-enforcement agencies to help identify and arrest illegal immigrants. The crackdowns have been especially intense in Arizona. Hundreds of the new Border Patrol and ICE agents have been assigned to Arizona to arrest and deport illegal immigrants, contributing to the growing caseloads. Although most illegal immigrants caught at the border are quickly returned, others choose to fight to stay.

The crush of new cases is delaying deportation rulings by years. In early January, Judge Wendell Hollis, one of the three Phoenix immigration judges, didn’t have room on his calendar to schedule final hearings for people seeking cancellation of removal until October 2011, 22 months later. Judge Lamonte Freerks was booked up until December 2012, nearly three years later. John Richardson, the senior judge, had the fullest calendar. In January, he was scheduling final hearings in August 2013!

http://www.azcentral.com/arizonarepublic/news/articles/2010/02/14/20100214immi grationcourts.html
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Memphis Immigration Court Overwhelmed

Fox News in Memphis is reporting that to get your case heard in one Memphis immigration court, you might have to wait a year or more to see a judge. The situation is so bad, Tennessee’s two Federal Senators are requesting help from the Department of Justice.

Memphis’ Immigration Court handles matters in Tennessee, Arkansas, and parts of Mississippi. Only two judges were handling that caseload. Now, it’s been reduced to one. Inside the federal building downtown, only one judge physically sits in Immigration Court. In 2008, that court heard more than 3400 cases.

Mauricio Calvo, Director of Latino Memphis, says this overflow shows the need for immigration reform. In February of 2010, Senators Lamar Alexander and Bob Corker wrote to the Department of Justice, requesting a delay in transferring the court’s second judge. Or, transferring another judge to Memphis until a permanent one is in place. Instead, the department rotates judges via video teleconference.

“People need to understand that immigration court is not only for un-documented immigrants. Immigration court affects people who are in the process of becoming legal, to become residents, to become citizens, citizens who are trying to bring their families, get re-united,” Calvo said. Cases that can’t wait a year or more for those involved, but often must.

http://www.myfoxmemphis.com/dpp/news/local/022410_memphis-immigration- court-overwhelmed
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6. New Bytes:

Sweeping enforcement bill headed for AZ House

The KPHO News in Arizona reports that a bill that would allow police officers to ask about anyone’s immigration status—even if they’re not suspected of a crime—passed in the Arizona Senate.

The bill would make it a state crime to transport or conceal an undocumented immigrant or to be in Arizona without authorization. The bill would also make it a crime for an unauthorized immigrant to solicit work in a public place or for anyone to hire someone from a vehicle. Those opposed to the bill say that it is racial profiling, while those in favor said it protects police and citizens statewide. http://www.kpho.com/politics/22585166/detail.html
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ID lawmaker seeks to revoke business licenses

The Spokesman Review in Idaho is reporting that state representative Phil Hart presented legislation that would suspend business licenses to penalize employers who knowingly hire unauthorized immigrants. The measure also includes misdemeanor penalties for using false identification to secure employment and misdemeanor and felony penalties for falsifying records for someone else for employment. The Representative believes that those measures would eliminate any incentive for undocumented immigrants to seek employment in Idaho.

Those questioning the bill believe that local prosecutors would be unable to track all possible business licenses that could be affected. Others also worry about the effects of the legislation on Idaho farmers. http://www.spokesman.com/blogs/boise/2010/feb/18/hart-us-magnet-these-people/ *****

CA Rep. wants probe of deportation by fake ‘agent’

The Associated Press is reporting that a California Congressman has called for an investigation into how a man in San Diego was able to pose as a U.S Marshal and deport his cousin’s wife to the Philippines.

Police said that the subject under investigation handcuffed the Filipino national at gunpoint and forced her husband, who is his cousin, to buy a plane ticket for her to be deported. The suspect then used a fake badge to get through security at the airport and put her on a plane to the Philippines where she remains.

The prosecutors have not decided whether he will face charges, which could be state or federal.

After the incident, the Transportation and Security Administration said its San Diego supervisor will get more training and that policies and procedures will be reviewed. http://www.nytimes.com/aponline/2010/02/22/us/AP-US-California-False- Deportation.html

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Activists surprised by low rate of application for Haitian TPS

The Orlando Sentinel is reporting that although thousands of Haitians have applied for Temporary Protected Status (TPS) only a month after that special designation was announced following the earthquake, immigration officials and activists are surprised at the relatively low number. The temporary status will be granted to those residing in the country as of January 12, 2010—the day of the earthquake—who do not have a felony or up to two misdemeanors on their criminal record.

U.S. Citizenship and Immigration Services (USCIS) has processed approximately 28,000 applications nationwide. That number is only a fraction of the immigrants expected to become legalized before the July 20 deadline. Immigration officials had first predicted that anywhere from 100,000 to 200,000 undocumented Haitians would be eligible for the temporary status, especially because undocumented Haitian immigrants have long sought ways to become permanent residents.

Some speculate that Haitians have been slow in applying for TPS because of mistrust and believe they are reluctant to register with the government. Others believe that some eligible Haitians are having difficulty coming up with the money for application fees and that they do not apply for fee waivers because they worry those requests will delay the applications. Another speculation is that some eligible Haitians might be delaying their applications because they mistakenly think that a later filing date would extend the time they would be able to stay legally in the U.S. However, the temporary status will be granted until July 22, 2011 regardless of when applications are approved.

USCIS reports that about 7 percent of all TPS applications received have been rejected, mostly because they were incomplete. Therefore, it is being advised that those Haitians eligible to apply for TPS should send their applications early so that they have more time to re-file if necessary. http://www.orlandosentinel.com/news/local/orange/os-haitians-tps-florida- 20100222,0,4733651.story

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7. Washington Watch:

McCain faces challenge from Arizona hard-liner

One News Now, in Arizona, reports that immigration policy may be an issue of contention in the state’s Republican Senatorial Primary.

Some immigration enforcement groups believe that Arizona Senator John McCain will be defeated in the GOP primary if he supports any pro-immigration legislation.
J.D. Hayworth—a former U.S Representative— is challenging four term Senator John McCain for the GOP Senatorial bid as an unwavering opponent of illegal immigration. http://www.onenewsnow.com/Politics/Default.aspx?id=900966

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8. Notes from Visalaw.com Blogs

Greg Siskind’s Blog on ILW.com

  • CHAVEZ MAKES THE CONSERVATIVE CASE FOR BEING PRO-IMMIGRATION
  • ANTIS RELEASE POLL SHOWING IMMIGRANTS ARE REALLY ANTI-IMMIGRANT
  • IMMIGRANTS’ LIST SCORES HOUSE MEMBERS
  • NEW REPORT SHOWS E-VERIFY STILL HIGHLY INACCURATE
  • DHS’ WAR ON STAFFING COMPANIES APPARENTLY DOESN’T INCLUDE DHS
  • BIPARTISAN INVESTOR VISA BILL INTRODUCED
  • TEXAS REPUBLICANS SHOULD BE NATURAL REPUBLICANS…
  • SCHWARZEGGER: NEVER THE PERFECT TIME FOR IMMIGRATION REFORM
  • AND YET FURTHER EVIDENCE GOP’S ANTI-IMMIGRATION VIEWS CAUSING ELECTORAL PROBLEMS
  • MORE ON THE GOP IMMIGRATION CIVIL WAR
  • REPUBLICANS CONTINUE TO SPREAD THE WORD THAT THEY’RE LATINO FRIENDLY
  • THE WAY OF THE WHIGS
  • BILL INTRODUCED TO EXTEND E-VERIFY TO MORTGAGE APPLICANTS
  • CONSERVATIVES GEARING UP FOR CIVIL WAR OVER IMMIGRATION
  • TEXANS TEND TO FAVOR IMMIGRATION REFORM
  • THE CONSEQUENCES OF INACTION
  • SHERIFF JOE TO BE PUNISHED FOR ILLEGAL DESTRUCTION OF RECORDS
  • BAYH RETIREMENT COULD BE GOOD NEWS FOR IMMIGRATION REFORM
  • PELOSI: WE’LL HAVE THE VOTES FOR IMMIGRATION REFORM

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

  • YAKIMA, WA CONSIDERING E-VERIFY CONTRACTOR MANDATE
  • GEORGIA LEGISLATOR PROPOSES E-VERIFY MANDATE
  • UTAH SENATE COMMITTEE PASSES E-VERIFY MANDATE BILL
  • UTAH LEGISLATORS CONSIDERING ARIZONA-STYLE E-VERIFY MANDATE
  • E-VERIFY FAILS TO CATCH HALF OF ILLEGALLY PRESENT WORKERS
  • USCIS TO POST E-VERIFY EMPLOYERS NAMES
  • IDAHO SANCTIONS BILL DIES IN COMMITTEE
  • BALTIMORE RESTAURANT OWNER CHARGED WITH HARBORING ILLEGAL ALIENS
  • MINNESOTA HOUSE SLIPS E-VERIFY PROVISION IN TO BUDGET BILL
  • GEORGIA COUNTY QUESTIONS HOW ILLEGALLY PRESENT WORKERS HELPED

BUILD COURTHOUSE

Visalaw Healthcare Immigration Blog

  • LAS VEGAS PHYSICIAN PRACTICES UNDER DHS INVESTIGATION FOR J-1 VIOLATIONS
  • HALF OF NURSES PLAN CAREER CHANGE Visalaw Investor Immigration Blog
    • BIPARTISAN INVESTOR VISA BILL INTRODUCED
    • MEXICANS INCREASINGLY PURSUING INVESTOR VISAS
    • INFLEXIBLE E-2 VISA CAUSES HEADACHES FOR BRITISH FAMILY
    • EB-5 INVESTORS TO FUND SEATTLE SKYSCRAPER
    • LAKE BUENA VISTA REGIONAL CENTER APPROVED FOR LOWER INVESTMENTS

Visalaw Fashion, Sports, & Entertainment Blog

LATINO ENTERTAINERS HAVING INCREASING SUCCESS
CANADIAN ENTERTAINERS FIND ENTERING US NO CAKEWALK

Visalaw International Blog

CANADA: SERGIO R. KARAS QUOTED BY CANWEST NEWS
CANADA: RCMP INVESTIGATING WIDESPREAD CITIZENSHIP FRAUD

The Immigration Law Firm Management Blog

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9. State Department Visa Bulletin: April 2010

VISA BULLETIN FOR APRIL 2010 A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by May 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been 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. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not

required for fourth preference.

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

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

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

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

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

EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference

level, plus any numbers not required for fourth and fifth preferences.

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

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

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

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

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

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

Family All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st 08JUL04 08JUL04 08JUL04 15OCT92 01MAR94
2A 01JUN06 01JUN06 01JUN06 01JAN05 01JUN06

2B 01MAR02

3rd 22MAY01

4th 01MAR00

01MAR02 01MAR02 15JUN92 15SEP98

22MAY01 22MAY01 15OCT92 01MAR92

01MAR00 01MAR00 08DEC95 08SEP87

*NOTE: For April, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN05. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JAN05 and earlier than 01JUN06. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

All CHINA-

Employment- Based

Chargeability mainland INDIA Areas Except born

MEXICO PHILIPPINES

C C

C C

Those Listed

1st C

2nd C

C C

22AUG05 01FEB05

3rd 01FEB03 01FEB03 08SEP01 01JUL02 01FEB03

Other Workers 01JUN01

01JUN01 01JUN01 01JUN01 01JUN01

4th C C C C C

Certain
Religious C Workers

C C

C C

5th C C C C C

Targeted Employ-ment Areas/ C Regional
Centers

C C

C C

5th Pilot Programs

CCCCC

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

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

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 31,700 Except:
Egypt: 20,800 Ethiopia: 19,300 Nigeria: 14,600
ASIA 13,600
EUROPE 26,300
NORTH AMERICA (BAHAMAS) 4  
OCEANIA 1,000
SOUTH AMERICA, and the CARIBBEAN 1,000

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-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 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 MAY

For May, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 39,200 Except:
Egypt: 23,600 Ethiopia: 22,500 Nigeria: 16,200
ASIA 16,400
EUROPE 29,250
NORTH AMERICA (BAHAMAS) 4  
OCEANIA 1,100
SOUTH AMERICA, and the CARIBBEAN 1,200

D. BACKGROUND INFORMATION ON FREQUENTLY MISUNDERSTOOD POINTS

Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, a significant amount of demand is received each month for applicants who have priority dates which are significantly earlier than the applicable cut-off dates. In addition, fluctuations in demand can cause cut-off date movement to slow, stop, or even retrogress. Retrogression is particularly possible near the end of the fiscal year as visa issuance approaches the annual limitations.

Per-country limit: The annual per-country limitation of 7% is a cap which visa issuances to any single country may not exceed. Applicants compete for visas primarily on a worldwide basis. The country limitation serves to avoid monopolization of virtually all the annual limitation by applicants from only a few countries. This limitation is not a quota to which any particular country is entitled, however.

Applicability of Section 202(a)(5): INA Section 202(a)(5), added by the American Competitiveness in the 21st Century Act, removed the per-country limit on Employment-based immigrants in any calendar quarter in which applicant demand for numbers in one or more Employment-based preferences is less than the total of such numbers available. In recent years, the application of Section 202(a)(5) has allowed countries such as China – mainland born and India to utilize large amounts of Employment First and Second preference numbers which would have otherwise gone unused. Such numbers are provided strictly in priority date order without regard to the foreign state chargeability, and the same cut-off date applies to any country benefiting from this provision.

Applicability of Section 202(e): When visa demand by documentarily qualified applicants from a particular country exceeds the amount of numbers available under the annual numerical limitation, that country is considered to be oversubscribed. Oversubscription may require the establishment of an earlier cut-off date than that which applies to a particular visa category on a worldwide basis. The prorating of numbers for an oversubscribed country follows the same percentages specified for the division of the worldwide annual limitation among the preferences. (Note that visa availability cut-off dates for oversubscribed areas may not be later than worldwide cut-off dates, if any, for the respective preferences.)

Furthermore, Section 202(a)(2) reads, “2) Per country levels for family-sponsored and employment-based immigrants. Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area under subsections (a) and (b) of section 203 in any fiscal year may not exceed seven percent (in the case of a single foreign state) or two percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.” The seven percent per-country limit specified in INA 202(a)(2) is considered to be for both Family-sponsored and Employment-based numbers combined.

Allocation of visa numbers under Section 202(e) is accomplished as follows:

  1. Ifbasedonhistoricalpatternsorcurrentdemanditappearsthatduringa fiscal year number use by aliens chargeable to a particular country will exceed the per-country numerical limit for both the Family and Employment preferences combined, that country would be considered oversubscribed. Both the Family and Employment preferences would be subject to the prorating provisions of INA 202(e)(1).
  2. Sometimesduringafiscalyearitmaybecomeapparentthatbecauseofa lack of demand in the Family preferences, number use by aliens chargeable to an oversubscribed country will be well within the per-country numerical limit. In such case the excess Family numbers would be made available to the Employment preferences subject to the prorating provisions of INA
    202(e)(1). Each of the first three Employment categories would receive 28.6% of the excess numbers, and each of the Fourth and Fifth preference categories 7.1%. (Fall-across would likewise apply if an oversubscribed country lacked sufficient demand in the Employment preferences but had excess demand in the Family preferences.)

If a foreign state other than an oversubscribed country has little Family preference demand but considerable Employment preference demand, the otherwise unused Family numbers fall across to Employment (and vice versa) for purposes of that foreign state’s annual numerical limit. For example, in FY-2009 South Korea used a grand total of 15,899 Family and Employment preference numbers, of which 1,688 were Family numbers and 14,211 were Employment numbers. This grand total was well within the FY-2009 per-country numerical limit of 25,620 Family and Employment numbers combined, so South Korea was not oversubscribed. The unused Family numbers were distributed within the Employment categories, allowing South Korea to be considerably over the 9,800 Employment limit which would have been in effect had it been an oversubscribed country.

E. OBTAINING THE MONTHLY VISA BULLETIN

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

http://travel.state.gov

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

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

listserv@calist.state.gov
and in the message body type: Subscribe Visa-Bulletin First name/Last name

(example: Subscribe Visa-Bulletin Sally Doe)

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

listserv@calist.state.gov and in the message body type: Signoff Visa-Bulletin

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

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

VISABULLETIN@STATE.GOV