Siskind’s Immigration Bulletin – March 27, 2012
Published by Greg Siskind, partner at the Immigration Law Offices of Siskind Susser, P.C., Attorneys at Law; telephone: 800-748-3819, 901-682-6455; facsimile: 800- 684-1267 or 901-339-9604, e-mail: firstname.lastname@example.org, WWW home page: http://www.visalaw.com.
Siskind Susser serves immigration clients throughout the world from its offices in the US and its affiliate offices across the world. To schedule a telephone or in-person consultation with the firm, go to http://www.visalaw.com/intake.html
Editor: Greg Siskind. Associate Editor: Juan Portillo. Contributors: Juan Portillo.
To receive a free e-mail subscription to Siskind’s Immigration Bulletin, fill out the
form at http://www.visalaw.com/subscribe2.html. To unsubscribe, send your request to email@example.com
To subscribe to the free Siskind’s Immigration Professional Newsletter, go to
World affairs impact US immigration policies all the time. Most often, they come up in political asylum and refugee cases where individuals must prove on a case by case basis that they would be subject to persecution if they are forced to go back to their home country. But sometimes matters grow so grave in a political country where everyone who goes back to that country is in enough danger that the White House decides to offer all of that country’s nationals in the US a form of relief called Temporary Protected Status that allows them to reside and work in the US until the situation in their country becomes safe again. Natural disasters and wars are most often the cause of granting TPS. The option is not granted very often – usually only a few times a decade. And this week Secretary Napolitano announced TPS will be granted to Syrians due to the unrest in that country.
The other recent news of interest to many readers is the release of the April State Department Visa Bulletin. Indian and Chinese EB-2 applicants have been getting much good news in the last few months as their priority dates have advanced significantly. But a word of warning. We have received information from the State Department that dates will retrogress beginning in May. If you have a current priority date, file before the end of April or you may be waiting awhile to be able to get the benefits of filing for adjustment of status.
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. BREAKING: DHS Designates Syria for Temporary Protected Status
In a press release, Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security designated Syria for Temporary Protected Status (TPS) for Syrians currently present in the United States. Napolitano cited “deteriorating conditions in Syria” as the impetus for the designation asserting that “Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country.” TPS is a temporary immigration status granted to nationals of designated countries as part of the US Immigration Act of 1990. During the period for which a country has been designated under the TPS program, the registrants are allowed to remain in the United States and obtain work authorization and may not be deported unless they commit certain crimes. TPS does not lead to permanent residence status in the US.
In our next issue, we will provide details on the rules for TPS.
3. ABCs of Immigration Law: R-1 Religious Visas
Who qualifies for an R visa?
To qualify for an R visa, the applicant must be
- A minister,
- A person working in a professional capacity in a religious occupation or vocation, or
- A person who works for a religious organization or an affiliate in a religiousoccupation who has been a member of the religious group for at least the two years immediately preceding the application.
The applicant must be a member of the religious denomination for at least two years immediately preceding the time of application for admission and be coming to work at least part time.
What is a “Religious Denomination”?
A religious denomination is defined as a religious group that have some form of ecclesiastical government, a common belief or statement of faith, some form of worship, a set of religious guidelines, religious services and ceremonies, established places for worship, religious congregations or comparable evidence of a bona fide religious organization.
USCIS has noted that a denomination does not mean that there must be a governing hierarchy. Rather, the focus is on “the commonality of the faith and internal organization of the denomination. An individual church that shares a common creed with other churches, but which does not share a common organizational structure or governing hierarchy can still satisfy the “ecclesiastical government” requirement by submitting a description of its own internal governing or organizational structure.
What are examples of “Religious Occupations”?
A religious occupation is an activity relating to “traditional religious functions.” The work must be recognized as a religious occupation within the denomination and the duties must be primarily related to, and must clearly involve inculcating or carrying out the religious creed and beliefs of the denomination.
Note that USCIS no longer includes a list of example occupations in its regulations. But over the years, USCIS has approved R-1 religious occupation petitions for liturgical workers, religious instructors, religious counselors, cantors, workers in religious hospitals or religious health care facilities, missionaries, religious translators and religious broadcasters. Maintenance workers, janitors and clerical employees do not qualify. And positions primarily administrative in nature also do not qualify. Positions that are strictly related to fundraising do not qualify for R-1 status, though USCIS has acknowledged that selling literature may not bar someone if they have other religious functions in their position. And religious study or training for religious work does not constitute a religious occupation (though a religious worker may pursue study or training incident to status).
The R-1 rule requires religious organizations to submit evidence identifying religious occupations that are specific to that denomination and that he alien’s proposed duties meet the religious occupation’s requirements.
What is a “Religious Vocation”?
A religious vocation is defined under the R-1 rule as “a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life.” Examples include nuns, monks, religious brothers and sisters.
What is a “Minister”?
Under the rule, a minister is “an individual authorized by a religious denomination, and fully trained according to the denomination’s standards, to conduct religious worship and to perform other duties as usually performed by authorized members of the clergy of that denomination.” Lay preachers are not included in this definition.
How do I apply for an R visa?
The rule requires all R-1 applicants, whether applying for a change of status in the US or for consular processing abroad, to get an I-129 and R visa supplement approved by USCIS.
All R-1 and immigrant religious worker petitions are filed at the USCIS California Service Center. Premium processing is not available as of March 2012 and USCIS indicated it is not likely to change this any time soon.
What attestations must an employer make regarding the petition?
Under the 2008 rule, Employers must now complete, sign and date an attestation and submit it along with the petition attesting to the following:
The employer is a bona fide non-profit religious organization or religious organization affiliated with a religious denomination and is exempt from taxation;
The worker has been a member of the denomination for at least two years and that the alien is otherwise qualified for the position offered;
The number of members of the prospective employer’s organization;
The number of employees working at the location where the beneficiary will be employed and a summary of the type of responsibilities of those employees. USCIS may request a list of the employees, their titles and a brief description of their duties;
The number of individuals holding religious worker status (both special immigrant and nonimmigrant) within the preceding five years;
The number of individuals the organization filed for religious worker status (both special immigrant and nonimmigrant) within the preceding five years;
The title of the position offered to the alien and a detailed description of the alien’s proposed daily duties;
The complete package of salaried or non-salaried compensation being offered; and
That an alien seeking nonimmigrant religious worker status will be employed for at least 20 hours per week (the rule also imposed a 35 hour per week requirement for immigrant petitions);
The specific location or locations of the proposed employment; and 11. That the alien will not be engaged in secular employment.
What additional documentation must be submitted regarding the qualifications of the petitioning organization?
Aside from the attestation, the employer must submit with the I-129 and fee, a currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization documentation of the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization; organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization; and a religious denomination certification (the organization must complete, sign and date a statement certifying that the petitioning organization is affiliated with the religious denomination)
What additional documentation must be submitted regarding the qualifications of a minister?
For ministers, the following documentation must be submitted:
1. a copy of the certificate of ordination or similar document reflecting acceptance of the alien’s qualifications as a minster in the religious denomination;
2. documentation that the worker has completed any course of prescribed theological education at an accredited or normally recognized institution including transcripts, curriculum, and documentation that establishes that the theological education is accredited, or
3. For denominations that don’t require a prescribed theological education, evidence of
- The denomination’s ordination requirements;
- The duties allowed to be performed by virtue of ordination;
- The denomination’s level of ordination, if any; and
- The alien’s completion of the denomination’s requirements for ordination
What documentation must be submitted regarding compensation?
The petitioner must explain how it intends to compensate the R-1 worker, including specific monetary and in-king compensation or whether the worker will be self-supporting (if the work is for temporary, uncompensated missionary work that is part of a broader international program of missionary work sponsored by the denomination). If compensation is being paid, evidence may include
- Past evidence of compensation for similar positions;
- Budgets showing monies set aside for salaries, leases, etc.;
- Verifiable documentation that room and board will be provided; or
- Other evidence acceptable to USCIS
Plus, IRS documentation such as W-2s or certified tax returns must be submitted if available.
How does an organization show it is a qualifying religious organization?
An organization petitioning for an R-1 religious workers must show that it is a “bona fide non-profit religious organization in the United States” or a “bona fide organization which is affiliated with the religious denomination.”
To qualify, an organization must be tax exempt under Section 501(c)(3) of the Internal Revenue Code. And to demonstrate this, under the 2008 rule, an employer must provide USCIS with a copy of a valid determination letter from the IRS confirming such exemption. To qualify based on an affiliation, the organization must show it is “closely associated” with a religious denomination that is tax exempt under Section 501(c)(3).
USCIS has expressly barred 501(d) religious organizations from applying for R-1 status even though an organization is tax-exempt under that section of the IRC.
It is a requirement that an R-1 sponsor must file a determination letter from the Internal Revenue Service (IRS) of the tax-exempt status of the petitioning religious organization under the Internal Revenue Code (IRC) 501(c)(3). The organization need not get a new determination for each petition and determination letters do not expire. If an organization changes addresses from the address on the letter, the same determination letter may be used as long as an explanation is provided in the petition.
The sponsoring organization also needs to submit a letter on behalf of the R-1 visa holder. This letter should outline the applicant’s two-year minimum membership, including where that membership occurred, in or out of the US. It should also include a statement that the foreign-based religious group and the US based religious group for which the applicant will work belong to the same denomination. It must state the name and location of the organization in the US for which the applicant will work. Finally, it should outline the applicant’s qualifications and salary.
What is the new inspection requirement under the R-1 rule?
USCIS has been conducting on site inspections of R-1 change of status petitions for some time, but now all R-1 sponsors will need to have an onsite inspection even if the religious worker is applying for consular processing. Technically, the rule says that USCIS can verify the evidence being submitted by a petitioning organization “through any appropriate means” but the USCIS has made it clear that onsite inspections are the means that will be used for this purpose.
At an inspection, USCIS may tour the facilities, interview organization officials and review organization records relating to the organization’s compliance with immigration laws and regulations.
Is there a minimum salary an R-1 religious worker must be paid?
There is no prevailing wage requirement like H-1B cases, but the an R-1 nonimmigrant must be compensated either by salaried or non-salaried compensation and the petitioner must provide verifiable evidence of such compensation. If there is no compensation, the petitioner must prove that the non-compensated worker is participating in a traditionally non-compensated missionary program within the denomination which is part of a broader “international program of missionary work” sponsored by the denomination. Plus, the petitioner must provide evidence of how the aliens will be supported while participating in the program. This is stricter than the old rule which generally allowed uncompensated, self- supporting nonimmigrants to see R-1 visas.
To qualify for R-1 status based on temporary, uncompensated missionary work, the petitioner must show it is a missionary program in which: (1) foreign workers, whether compensated or uncompensated, have previously participated in R-1 status; (2) missionary workers are traditionally uncompensated; (3) the organization provides formal training for missionaries; and (4) participation in such missionary work is an established element of religious development in that denomination. A petitioner may submit evidence in the form of books, articles, brochures or similar documents that describe the missionary program, the religious duties associated with the missionary work and proof that the alien has been accepted in to the program and describing the alien’s responsibilities. Plus, the organization must demonstrate that the alien has the means to support himself or herself or has otherwise provided for the alien’s support.
Note that it may still be possible to seek a B-1 visitor status classification if this test cannot be met.
Petitioners must show proof of past compensation or support for nonimmigrants when apply for an extension.
How long can I have R status?
The maximum stay in R-1 status is 5 years. A person can obtain R-1 status again after remaining outside the US for one year before making another application.
Under theR-1 rule, R-1s can be initially admitted for a period up to 30 months (down from the prior 36 month limit) and an extension of up to 30 months may be issued by USCIS. If a person’s employment in the US is seasonal or intermittent or for an aggregate of six months or less per year, the five year limit does not apply. It also doesn’t apply to people who reside abroad and regularly commute to the US to engage in part-time employment. To demonstrate this, an applicant needs to show arrival and departure records, tax returns and employment records outside the US.
Can R-1s recapture time toward the five year limit if they have been outside the US?
On March 8, 2012, USCIS issued a policy memorandum discussing procedures for calculating the maximum period of stay for R-1 nonimmigrants. Under the R-1 Religious Worker nonimmigrant classification, aliens may enter the United States for a period not to exceed 5 years. Currently, USCIS policy guidance provides that H-1B and L-1 nonimmigrant aliens, and their dependents, may recapture time spent outside the United States when calculating their maximum period of authorized stay.
USCIS issued this memorandum to direct officers who adjudicate R-1 nonimmigrant petitions to extend this policy to all R-1 petitions seeking to recapture time that are currently pending with USCIS or to all new petitions filed on or after March 8, 2012. The memorandum states “that any days spent outside of the United States during the validity period of an R-1 petition will not be counted toward the maximum period of stay in the United states in R-1 status, provided that the alien remains eligible for the classification and is able to submit independent documentary evidence establishing that he or she was in fact physically outside of the United States during the day(s) for which the alien is seeking recapture.”
Can I have more than one employer if I am an R-1?
Yes. But each qualifying employer must submit a separate petition with all of the required documentation.
What visa status do the spouse and children of an R-1 nonimmigrant receive?
Spouses and children of R-1 nonimmigrants and classified as R-2. They are not permitted to work unless they have their own work visas. R-2 status is granted for the same period of time and subject to the same time limits as the R-1 regardless of the time the spouse and children may have spent in the US in R-2 status.
Are there any differences between the special immigrant religious worker category for green card applicants and R-1 non-immigrant visas?
The most important difference between the two religious worker categories is that the R-1 visa is temporary and the special immigrant religious worker visa is permanent. An applicant for a green card as a special immigrant religious worker must have been working for the religious group for at least two years prior to making the application. This work may be done either in or out of the US. In most cases where the work is done in the US, the person has been in the US on an R-1 visa. Another difference between the two is the forms involved. A special immigrant religious worker applies using Form I-360 in place of the I- 129 and R supplement. Also, special immigrant religious workers must work at least 36 hours per week while R-1 visa holders can work 20 hours per week.
Generally speaking, the evidence that should accompany the special immigrant religious worker petition and the role of the beneficiary within the religious organization are the same as for the R-1 applicant.
Are R-1 visas “dual intent”?
The 2008 rule for the first time addressed the impact a green card petition has on R-1 status. The new rule states that R classification may not be denied solely because a labor certification or preference petition, including a Form I-360, has been filed by or on behalf of the alien.
Can R-1 denials be appealed?
Yes. The R-1 rule provides a right to appeal a denial of an R-1 petition. This now makes the R-1 similar to H, L, O, P and Q visas.
Can R-1 approvals be revoked?
Yes. The R-1 rule provides for USCIS to be able to revoke an R-1 petition.
What are an employer’s obligations if the R-1 is working less than 20 hours per week or has been terminated from employment before the expiration of the authorized R-1 stay?
The employer must notify DHS within 14 days.
What alternatives are available if the R-1 is not an option?
There are a number of other nonimmigrant categories that may be fit if the R-1 is out. They include the L-1 intracompany transfer category, the H-1B specialty occupation and J-1 trainee status. Unpaid workers may qualify for B-1 status. And F-1 students may be able to engage in some employment activities such as on campus work and curricular training off campus.
4. Ask Visalaw.com
If you have a question on immigration matters, write Askfirstname.lastname@example.org. 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 am currently on H-4 visa. I want to go back to college. Do I need to change to an F1 visa?
H-4 status is for spouses of H-1B non-immigrants. If your spouse will be continuing as an H- 1B nonimmigrant and you are planning on remaining married, then there is no need to change your status to become an F-1 (student) nonimmigrant. While the F-1 status does allow you to attend SEVIS authorized schools, so do many other statuses. As an H-4 nonimmigrant, you are eligible to attend school, even though you are not eligible for employment authorization. In fact, as an H-4 your options for educational programs are broader, since you are able to attend schools that are not on the SEVIS list and you are not required to take a full course load. Also, as an H-4 you can change schools without having to receive SEVIS authorization first. One difference between the two, however, is the lack of any sort of work authorization for H-4 spouses. F-1s have the limited ability to work on campus as well as in off-campus practical training programs.
For more information on the F-1 student visa and SEVIS, visit http://www.visalaw.com/03jan3/2jan303.html and http://www.visalaw.com/03jan4/2jan403.html
I have been told that I can legally change my name as part of the application for naturalization. Is it difficult to do this and will this make my naturalization application take longer?
Yes, as part of the naturalization application you can change your name to anything you wish. For example, if you have a long name or a name that is tough for people in
the U.S. to pronounce, you can legally change your name to a nickname or to an anglicized version of your name. The process is simple. On the form there is a section that asks if you want to change your name. You just answer yes and provide the new name you want. At the interview, there will be a couple extra pages for the applicant to sign, but this doesn’t add much time to the interview.
However in some jurisdictions, asking for a name change can cause some delay in getting the citizenship. This is because some naturalization swearing-in ceremonies are administrative, meaning they are performed by USCIS with the permission of the U.S. Court, and some are judicial, meaning they are performed by a U.S. Judge. An applicant for a name change must have a judicial swearing in ceremony, as the USCIS does not have the authority to legally change a name in an administrative swearing-in ceremony. Therefore if you are applying in a jurisdiction where the swearing-in ceremonies are mostly administrative, you will have to wait to be scheduled in the next judicial swearing-in ceremony. You can determine what the practice is in your jurisdiction by asking an immigration law attorney or by visiting USCIS with an Infopass appointment.
5. Border and Enforcement News:
The Los Angeles Times reports that the number of deportation cases filed by federal immigration officials dropped by nearly a third in the first three months of the fiscal year, according to a report by the Syracuse University Transactional Records Access Clearinghouse (TRAC). The drop recorded in the last three months of 2011 may reflect the Obama administration’s plan to focus its deportation efforts by weighing a variety of discretionary factors, according to the report. Experts say it is too soon to say if deportations overall will decline.
NBC Los Angeles reports that ICE responded to the recent report on the drop in deportation cases saying the report’s numbers were inaccurate because it failed to consider immigrants who are deported without a trial. “When removing individuals who have been convicted of a crime and who have no lawful immigration status… ICE is not required to file charging documents in immigration court asserting criminal grounds of removal,” ICE spokeswoman Gillian Christensen said. Sue Long, co-director of TRAC, disputed the claims of inaccuracy, asserting that any problems with the data stem from ICE not releasing their immigration court data.
Iowa House Panel OKs E-Verify Bill
The Associated Press reports that the Iowa House Judiciary Committee approved a bill on a 13-8 vote that requires businesses to screen potential employees through the federal E- Verify program. The bill also creates a complaint process in which county attorneys or the state attorney general would investigate allegations of businesses employing illegally present immigrants and impose harsh penalties on offenders. The vote advanced the bill to the House floor for further consideration.
Vanessa Marcano, a community organizer for Iowa Citizens for Community Improvement, an advocacy group supporting immigrants rights, said she believed E-Verify was “glitchy” and that the new processes could create a “climate of fear and hostility” for legal immigrants. The bill’s sponsor, Rep. Julian Garrett (R) argued that businesses and workers are harmed by the current situation, in which employing illegally present workers is illegal but enforcement is lax.
Missouri City Council Approves E-Verify Ordinance
The Associated Press reports that the Springfield, MO City Council reluctantly certified a voter-approved ordinance requiring employers to use E-Verify, a federal program to check their employees’ immigration status. After the council certified the ordinance requiring Springfield businesses to use the E-verify program to check their employees’ status or be fined, City Manager Greg Burris said he is praying the city is sued so it doesn’t have to enforce it. The ordinance was drafted by the Ozarks Minutemen and approved by voters Feb. 7.
Border Patrol Completes More than 6 Miles of New Border Fence in Arizona
ABC15.com (AZ) reports that U.S. Customs and Border Protection has completed the construction of more than six miles of border fence near the city of Douglas, Arizona with fencing that is significantly more difficult to break through, according to a news release from the agency. The construction, which began in early October of last year, is part of the Border Patrol’s ongoing effort to strengthen the border fence by replacing fencing built in the 1990s with an 18-foot bollard-style fence on both sides of the Douglas Port of Entry.
Feds Seek Compromise on Cook County Immigration Ordinance
The Chicago Tribune reports that Immigrations and Customs Enforcement (ICE) Director John Morton issued a letter to Cook County (IL) Board President Toni Preckwinkle as part of an effort to get county officials to reconsider their refusal to cooperate with federal detention requests. Director Morton has harshly criticized a Cook County ordinance that orders the sheriff’s office to ignore ICE detainers and release illegally present immigrants who have been jailed on other charges after they’ve posted bail.
In the letter, Morton offered to pay any additional expenses of holding inmates until they can be picked up for deportation proceedings. Preckwinkle’s office issued a statement saying that she hopes to meet with Morton and others to discuss the ordinance. County officials have said the ordinance is partly related to the costs of keeping suspected illegally present immigrants locked up but also because of concerns about infringing on the rights of the detainees.
http://articles.chicagotribune.com/2012-02-29/news/ct-met-cook-county-immigration- ordinance-0229-20120229_1_illegal-immigrants-ice-detainers-immigration-enforcement- agency
U.S.: Honduras Prison Fire Victim Wrongly Deported
The Associated Press reports that U.S. Immigration and Customs Enforcement (ICE) issued a statement admitting that Nelson Avila-Lopez, a 20 year old Honduran citizen living in Los Angeles, was mistakenly deported in October. In September Avila-Lopez was detained and slated for deportation, but his lawyer argued his client would face danger from gang members if he had to go back to Honduras and a stay was automatically granted so his case could be reviewed. Despite the stay, Avila-Lopez was deported and after being jailed in Honduras on suspicion of gang affiliation, he died tragically in the Comayagua prison blaze. ICE said in the statement that deportation was probably the result of a breakdown in communication between the agency and the immigration court. The Department of Justice, however, said that it sent ICE the court documents in a timely manner.
DHS Finalizing Plan for Exit System
The Associated Press reports that the Department of Homeland Security (DHS) is finalizing its plan for a biometric data system to track when immigrants leave the United States and will present it to Congress within “weeks,” a department official told a House Homeland Security subcommittee. An exit system to track who is leaving the country and when has been sought for years but DHS officials have previously said it would be too costly.
Some estimates suggest that as many as half of the country’s estimated 11 million illegally present immigrants came to the country legally and overstayed their visas. As a result, Immigration and Customs Enforcement (ICE), the agency responsible for deporting illegally present immigrants, has sought more efficient ways to track overstays and identify the ones that pose a threat to national security or public safety. John Cohen, the DHS’s deputy counter terrorism coordinator, said improvements in how data from immigrants is collected and stored has made it easier for law enforcement to identify visa overstays and determine if they pose a threat to national security or public safety.
6. News from the Courts:
The Baltimore Sun reports that Circuit Judge Ronald A. Silkworth rejected arguments by immigrant advocacy group Casa de Maryland and others that a law to allow in-state tuition for some illegally present immigrants, adopted by the General Assembly last year, cannot be subject of a referendum. The group’s attorneys had argued that the law was an appropriations measure and therefore could not be put before voters.
“I said from the beginning that they had a frivolous lawsuit and we would prevail,” said Del. Patrick L. McDonough, a Republican representing parts of Baltimore and Hartford counties and an outspoken critic of illegal immigration. McDonough said he expects “vigorous” opposition from CASA and others who want to see the law take effect. The law, which has been suspended pending the referendum, would provide illegally present students with the same in-state tuition discounts enjoyed by legal residents. “Together with our attorneys, we are still reviewing today’s decision but we are likely to appeal,” said Kim Propeack, director of political action at Casa de Maryland.
Supreme Court, 6-3, on aggravated felony: Kawashima v. Holder
In a 6-3 decision, the United States Supreme Court clarified that tax crime is an “aggravated felony” for immigrant removal purposes.
The Court ruled that convictions for false statements on tax returns in which the government’s revenue loss exceeds $10,000 qualify as aggravated felonies for deportation considerations. Justice Clarence Thomas authored the majority opinion which asserted that the tax crime in the case entailed deceit qualifying them as “aggravated felonies” within the meaning of the Immigration and Nationality Act.
Judge Delays Ruling on Utah Immigration law
The Salt Lake Tribune reports that U.S. District Court Judge Clark Waddoups said he will not rule on Utah’s enforcement-only immigration law until the U.S. Supreme Court decides on a similar enforcement-only law in Arizona a few months from now. Judge Waddoups, in his decision, said that while the Utah Attorney General’s Office made it clear that the state’s law, HB497, was different from what Arizona passed almost two years ago, it was close enough that the high court’s decision could ultimately impact Utah’s law.
11th Circuit Court of Appeals Blocks Two More Sections of Alabama’s Immigration Law
The Associated Press reports that the U.S. 11th Circuit Court of Appeals in Atlanta issued an order blocking two more parts of Alabama’s immigration law. The court blocked provisions that bar residents from knowingly entering into contracts with illegal immigrants and ban illegally present immigrants from entering business transactions with state and local governments. The ruling came after a hearing where the U.S. Department of Justice and a group of plaintiffs argued that the two sections make it all but impossible for immigrants whose status is still in limbo and those illegally present to live in Alabama. Alabama Attorney General Luther Strange expressed disagreement with the decision while immigrant’s rights activists celebrated the ruling as “good news.” The court decided to wait until the Supreme Court issues its decision on Arizona’s SB 1070 to issue its final ruling.
Judge Blocks Day Labor Rules in AZ Immigration Law
The Associated Press reports that U.S. District Judge Susan Bolton blocked police in Arizona from enforcing a section of the state’s 2010 immigration enforcement law that prohibited people from blocking traffic when they seek or offer day labor services on streets. Judge Bolton rejected arguments by the state that the rules were needed for traffic safety and pointed out that the law, also known as SB1070, says its purpose is to make attrition through enforcement the immigration policy of state and local government agencies.
Governor Jan Brewer said in a statement that she was disappointed with Bolton’s “erroneous decision,” which she said has further eroded the state’s ability to regulate public safety. Dan Pochoda, legal director for the American Civil Liberties Union of Arizona, said the judge saw through the government’s ruse that the day labor rules were about traffic safety, when the goal all along was to get at day laborers.
Nebraska City to Appeal Immigration Ordinance Ruling
The Associated Press reports that the city council of Fremont, NE voted unanimously to appeal a judge’s ruling that overturned part of their controversial immigration ordinance. U.S. District Court Judge Laurie Smith Camp overturned part of the law that would have banned the harboring of illegally present immigrants. The ACLU of Nebraska has announced plans to appeal the portion of the ruling that was upheld.
7. News Bytes:
Politico (DC) reports that the Obama campaign is targeting Mitt Romney over his opposition to the DREAM Act. In a new Spanish-language video entitled “Apoyando Nuestros Suenos” (“Supporting Our Dreams”), the campaign highlights Obama’s support for the bill, which would provide a pathway to citizenship for illegally present minors brought to the United States. It also invites Hispanic voters to sign up for campaign updates in Spanish at a special campaign landing page.
Obama Administration Asks Silicon Valley How It Can Improve Immigration Process for Foreign-Born Entrepreneurs
TechPresident reports that U.S. Citizenship and Immigration Services hosted an Entrepreneurs In Residence Information Summit in Silicon Valley to solicit viewpoints and input from the startup community on how the administration can improve the way it hands out visas to talented entrepreneurs who’ve landed funding to create new companies. The goal of the event is to gather input so that the entrepreneurs in residence can come up with well-thought through ideas for making the process of applying for work visas more transparent and accessible to immigrant founders of new firms.
Columnists like Tom Friedman and tech leaders like Bill Gates have long complained about U.S. immigration policy and its odd unfriendliness toward highly-skilled foreign workers who could be starting companies and creating jobs here, or bringing their skills to improve the talent pool at existing companies. Comprehensive immigration reform legislation is stalled in Congress as is specific bipartisan legislation that attempts to address some of the startup visa issues. As a result, the Obama administration is left to make the most of the rules that it currently has on the books by re-interpreting a more accommodating implementation of those rules with fresh information gathered from the field.
Ariz. AG to Look Into Sheriff Misconduct Claims
The Associated Press reports that Arizona’s Pinal County Sheriff Paul Babeu asked the Gila County sheriff’s office and that county attorney’s office to investigate allegations made against him and his office. Those offices told Babeu’s office they did not have the resources, so the Arizona Attorney General Tom Horne agreed to conduct a comprehensive independent investigation of the allegations against Babeu. Babeu publicly acknowledged that he is gay amid allegations of misconduct made by a Mexican immigrant with whom he had a relationship. He has denied claims he tried to threaten the man with deportation if their relationship were made public.
The Latino rights organization Respect Respeto sent a request to the U.S. Department of Justice for a probe into Babeu for abuse of power. The group alleges in its request that Babeu made “text messages, pictures and threats that are unbecoming of an elected sheriff.” Babeu, a first-term sheriff who has risen to national prominence with his strong opposition to illegal immigration and smuggling, said the accusations were an attempt to hurt his political career. Babeu is currently vying for Arizona’s rural 4th Congressional District, a campaign he vows to continue.
U.S. to Pay Immigrants over Raids
The New York Times reports that the federal government has agreed to pay $350,000 to settle a civil rights lawsuit filed by 11 Latino immigrants who were arrested in 2007 in a series of immigration raids at their homes in New Haven, Connecticut. In addition, the government agreed not to deport the plaintiffs. The suit alleged that armed federal officers violated the constitutional rights of the 11 men by arresting them in their homes without warrants and without inquiring about their immigration status, informing them of their rights or explaining why they were being detained. A statement from Immigration and Customs Enforcement (ICE) said that the settlement was not an admission of wrongdoing, adding that “the government is settling in order to avoid the additional time and expense of further litigation.”
Alabama House Approves Bill Making Immigration Law Change
The Associated Press reports that the Alabama House voted 92-0 to make the first change to the state’s tough immigration law, allowing the use of military identification cards as proof of citizenship or legal residency. House Majority Leader Rep. Micky Hammon, House sponsor of immigration legislation, said the bill would be included in legislation making overall changes. House Speaker Mike Hubbard said Thursday the bill to make changes to the immigration law is still being written and he hopes it will be ready to introduce by the time lawmakers take their spring break at the end of March. He said most of the changes will be “tweaks” and reaffirmed that “we are not backing down at all from the intent of the original bill.”
Mississippi House Passes Tough Immigration Bill
Fox News Latino reports that a bill modeled after Alabama’s tough immigration law moved through Mississippi’s House Judiciary B Committee and will now go on to the House Education committee. From there it would go on to the full chamber. The bill’s sponsor, Judiciary B Committee Chairman Andy Gipson (R) said the Mississippi bill has been written in a way to ensure it will stand up to legal scrutiny. The bill is supported by Gov. Phil Bryant, a Republican who has been campaigning against illegal immigration since his days as state auditor. Bryant and other proponents claim the bill will benefit Mississippi, freeing up tax money and jobs for citizens and other legal residents. Opponents dispute those claims. “It is still about ethnic cleansing,” said Bill Chandler, executive director of the Mississippi Immigrant Rights Alliance.
Miami Teen to Take Immigration Plight to Capitol Hill
McClatchy Newspapers reports that Daniela Pelaez, the senior class valedictorian at North Miami Senior High School, narrowly avoided deportation with her sister at the end of March. Daniela had big dreams of attending Ivy League Universities before a recent court decision slated her for removal from the United States. Pelaez has lived in the U.S. since she came from Columbia at the age of 4 and currently lives with her father who is a resident. More than 3,000 people signed an online petition to stop Pelaez from being deported, quickly bringing her story to the nation’s attention. Florida lawmakers stepped in to help Palaez, making calls directly Homeland Security chief Janet Napolitano and their efforts were rewarded with a two year stay on her deportation. The Miami senior said she is “overwhelmed” by the amount of support she has received. She had a chance to thank some of the politicians who helped her during a two day trip to Washington D.C. to talk to U.S. senators and several House members about her immigration battle.
Bill to Regulate “Immigration Consultants” Passes Utah Senate
The Deseret News reports that the Utah Senate passed SB144, a bill to regulate non- attorney “immigration consultants.” Sen. Luz Robles (D) said she introduced the legislation to address fraud at the hands of unscrupulous “immigration consultants” hired by refugees, undocumented Utahans as well as legal residents to help them fill out immigration papers. Immigration consultants will be required to register with the state Division of Consumer Protection, undergo criminal background checks and post bonds. Te bill now moves to the Utah House for further consideration.
8. Washington Watch:
The Washington Times reports that Senator Charles Schumer (D-NY) invited Arizona Gov. Jan Brewer to testify before the Senate about her state’s immigration law, which is slated for a Supreme Court hearing later this year. “As you frequently ask the President to visit the southern border to discuss border security, we expect that you will be eager to engage in a productive dialogue with the congressional committee responsible for acting upon any border security recommendations you provide,” Sen. Schumer wrote in a letter inviting the governor to appear.
Matthew Benson, a spokesman for Gov. Brewer said she is not likely to attend “a publicity stunt.” “It doesn’t appear that this would be the most productive hearing for Governor Brewer to attend,” he said. Mr. Benson continued by saying the governor felt the hearing seems more about scoring political points than acting to help the border.
House Committee Backs Bill for Israeli Investors
Jewish Telegraphic Agency reports that the House Judiciary Committee approved legislation that would add Israel to the list of countries eligible for non-immigrant investor visas in the United States. The legislation, sponsored by Rep. Howard Berman (D-Calif.) would grant Israelis the ability to acquire the E-2 visa if similarly situated U.S. nationals are eligible for non-immigrant visas in Israel. In a statement, Judiciary Committee Chairman Lamar Smith (R-TX) thanked Berman for what he said was a “common-sense bill.”
9. Updates from the Visalaw.com Blogs
- Arizonans Now Not So Excited About Immigration
- Immigrant of the Day: Christopher Plummer – Best Supporting Actor
- Immigrants of the Day: Dante Feretti and Francesca Lo Schiavo – Oscar Winners for Art Direction
- Immigrant of the Day: Bret McKenzie – Oscar Winner for Best Song
- Immigrant of the Day: Demián Bichir – Actor and Legalized Worker
- Grassley Blocking Startup Visa in Senate
- Judge Blocks Another Section of Arizona Law
- Dr . Tina Strobos Dies at 91
- NFAP: Birthright Citizenship Proposal Would Result in “Tax” of $1600 for Every BabyBorn in the US
- Obama Crushing Republican Contenders With Hispanic Voters
- Silicon Valley Leaders Fund Scholarships for Dreamers
- Appeals Court Blocks Two Key Parts of Alabama Law
- Alabama Primary: Will Romney Try To Tone Down Immigration Positions or DoubleDown
- Immigrant of the Day: Rihanna – Singer
- Immigrants of the Day: Shaul Gabbay and Amin Kazak – Professors
- Russell Pearce Plots Return
- Student in Webcam Trial May Face Deportation
- March Madness Shows Ugly Side
- Immigrant Doctors a Lifeline for Rural Communities
The SSB I-9, E-Verify, & Employer Immigration Compliance Blog
The Visalaw Healthcare Immigration Blog
Karen Weinstock’s Visalaw Georgia Immigration Blog
- ICE Heavily Fining Employers for I-9 Paperwork Violations
- Best I-9 Practices for Retailers
• Cuban Doctors Being Denied Green Cards
• American Hospital Association Endorses Conrad IMG Bill
• GOVERNOR DEAL WILL NOT CHANGE HB87 DESPITE NEGATIVE CONSEQUENCES
• NFAP POLICY BRIEF FINDS HIGH DENIAL RATES FOR L-1 AND H-1B PETITIONS BY
• 11TH CIRCUIT HEARS ORAL ARGUMENTS ON GEORGIA AND ALABAMA
• SB458 PASSES GEORGIA SENATE AGAINST UNDOCUMENTED STUDENTS GOING
• GEORGIA COLLEGE GRADUATION RATES LOWER THAN OTHER STATES
• UNDOCUMENTED IMMIGRANT WINS $750K LOTTERY CASE IN GEORGIA
• GEORGIANS COULD BEAR MORE OF THE COSTS OF JAILING UNDOCUMENTED
10. State Department Visa Bulletin: April 2012
Family 1st – World numbers, China and India jumped 14 months to 01 April 05; 1 week advance for Mexico to 08 May 93; Philippines stalled at 22 June 97.
Family 2A – World numbers, China, India, and the Philippines jumped eleven weeks to 08
October 09; Mexico advanced 2 months to 01 September 09.
Family 2B – World numbers, China, and India jumped two months to 15 January 04; Mexico remains stalled at 01 December 92; Philippines stalled at 08 December 01.
Family 3rd – World numbers, China, and India moved forward six weeks to 15 February 02; one week advance for Mexico to 15 January 93; Philippines remain stalled at 22 July 92.
Family 4th – World numbers, China, and India jumped one month to 08 November 00;
Mexico advanced a week and a half to 01 June 96; Philippines advanced two and a half weeks to 08 January 89.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India stalled at 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 08 April 06; China jumped two months to 01 March 05; India moved a week and a half to 01 September 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 08 April 06; China remains stalled at 22 April 03; one and a half week advance for India to 01 September 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 April. 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 March 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority dateearlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date isearlier than the cut-off date listed below.)
Family- Chargeability mainland INDIA
Sponsored Areas Except born Those Listed
- F2A 08OCT09
- F2B 15JAN04
- F3 15FEB02
- F4 08NOV00
01APR05 01APR05 08MAY93 22JUN97
08OCT09 08OCT09 01SEP09 08OCT09
15JAN04 15JAN04 01DEC92 08DEC01
15FEB02 15FEB02 15JAN93 22JUL92
08NOV00 08NOV00 01JUN96 08JAN89
*NOTE: For April, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01SEP09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01SEP09 and earlier than 08OCT09. (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 isearlier than the cut-off date listed below.)
All CHINA- Employment- Chargeability mainland INDIA
Based Areas Except born Those Listed
1st C C C C C
01MAY10 01MAY10 C C
Certain Religious Workers
Targeted EmploymentAreas/ C Regional Centers
and Pilot Programs
C C C C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2012 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For April, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
All DV Chargeability Areas Except Those Listed Separately
Except: Egypt 29,500 Ethiopia 29,500 Nigeria 20,000
Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)
SOUTH AMERICA, and the CARIBBEAN
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT- OFFS WHICH WILL APPLY IN MAY
For MAY, 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
Except: Egypt 33,000 Ethiopia 33,000 Nigeria 25,000
Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)
SOUTH AMERICA, and the CARIBBEAN
D. CHINA-MAINLAND BORN FAMILY FOURTH PREFERENCE
In recent months we have been experiencing very heavy applicant demand in the China-mainland born Family Fourth preference category. Based on the current rate of demand, it is likely that future movement of this cut-off date will slow and possibly stop at some point in the near future. This action will be taken in an effort to keep issuances within the annual numerical limits.
E. I-601 PROVISIONAL WAIVER
USCIS is considering changes that would allow certain immediate relatives (the spouse, children or parents of a U.S. citizen) who can demonstrate extreme hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States. These new procedures will not apply to the Family-sponsored numerically controlled preference visa categories.
These procedures are not in effect and will not be available to potential applicants until USCIS publishes a final rule in the Federal Register specifying the effective date. USCIS plans to publish a notice of proposed rulemaking in the coming months and will consider all comments received as part of that process before publishing a final rule.
• Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective.
• Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn the facts about protecting yourself and your family against scammers by visiting uscis.gov/avoidscams.
If you already have an immigrant visa interview with the U.S. Department of State, we strongly encourage you to attend. The Department of State may cancel your immigrant visa registration if you fail to appear at this interview.
Those interested in this I-601 provisional waiver issue should consult the USCIS.gov web site for the latest updates.
F. OBTAINING THE MONTHLY VISA BULLETIN
The Department of State’s Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:
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: March 9, 2012