November 2011

Dear Readers:

The major news of the week was the report that DHS and the Department of Justice have started formally enacting the prosecutorial discretion policy. Last August, ICE issued a memorandum to the field indicating that resources should be focused on deporting criminals and others in categories like potential DREAM Act recipients and military family members should have their proceedings closed and, in some cases, receive employment authorization.

The Administration has been receiving considerable criticism over Immigration and Customs Enforcement’s ignoring the policy. For example, ICE has refused to budge in taking a six year old girl out of proceedings even though she has parents and grandparents with legal status. But this week DHS announced specific plans for how they are going to implement the new policy. They will first start with new cases coming in and send the criminal matters to an expedited docket. The other cases will be diverted from being in removal proceedings and the matters will be closed (though not entirely dismissed in case the individual commits a crime or violates immigration law). And a pilot program will be set up in Baltimore and Denver where all cases involving individuals not detained will be reviewed to see which ones fit the parameters of the memo. In mid-January, DHS and DOJ will decide on how to expand that program.

In other news, we saw a sudden major jump in priority dates in the employment based green card categories, particularly for Indians and Chinese in the EB-2 category. This is great news for that group of individuals, though we have also received warning that in the spring we’ll see a halt to the forward progress for a while. So individuals need to get in contact with their lawyers if they are affected by this development.

Finally, we have seen a major acceleration of H-1B usage in the past several weeks and we’re expecting the cap for this fiscal year to be hit later this month or early next month. That’s nearly two months faster than last year, an indicator that either USCIS is getting much more liberal in its adjudications (unlikely) or we’re seeing a pick up in economic activity. Assuming it’s the latter, that could very well be a precursor to declining unemployment in 2012 as H-1Bs are often a leading economic indicator of overall hiring. Companies file H-1B cases based on anticipated future labor demands as well as current needs. When the pool of available US workers increased when the recession started, H-1B filings plummeted. So while the lack of H-1B numbers is worrying, at least we can see a silver lining for the country as a whole.

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In firm news, I was quoted twice this week in national media. The Associated Press interviewed me for a story on the ICE IMAGE employer compliance program. And the Daily Caller quoted me in a story on E-Verify. .

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And a Happy Thanksgiving to all of our readers. We have much to be thankful for this year even if we find ourselves focusing on difficulties at home and around the world.

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

What is an L-1 intracompany transfer visa?

L-1 intracompany transfer visas are non-immigrant visas available to persons coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US.

What are the advantages of an L-1 intracompany transfer visa as opposed to other types of visa?

While there are a number of important requirements to qualify in this category, the category offers a number of advantages that make it worth considering over other types of visas. For example, there is no annual limit on the number issued, one may pursue permanent residency while on an L-1 visa, for many L-1As, there is a matching permanent residency category that makes getting a green card relatively quick and pain-free and spouses of L visa holders can pursue work authorization cards. .

What are the requirements for an L-1 intracompany transfer visa?

The first requirement for the L-1 is for the applicant to have been continuously employed abroad for one year of the last three for a parent, affiliate, or subsidiary of a US employer. The employer may be a company or other legal entity including a profit, non-profit, religious, or charitable organization. It does not matter if the company is incorporated or not. Any time spent working in the US will not count toward the one year of required employment, though time spent in the US will not be considered to have disrupted the continuity of employment abroad. It is possible to use a combination of part-time employment for affiliated companies under certain circumstances.

Second, the foreign firm and the US firm must have a “qualifying relationship.” Both the US and the foreign firm must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity. Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own approximately the same amount of both the US and the foreign company. This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.

Third, the applicant must be coming as a manager, executive or specialized knowledge employee. “Specialized knowledge” refers to employees with• a special knowledge of the company’s products and their applications in world markets;

• an advanced or proprietary knowledge of the company’s processes or procedures.
Fourth, the applicant must intend to depart the US when his or her stay is over. But the applicant may also pursue permanent residency simultaneously without a negative impact on the ability to keep or extend an L visa. This is because the doctrine of dual intent applies to L-1 visas (just like H-1B visas). This makes the L visa a popular option for multinational firms.

What is the difference between an “executive” and a “manager”?

An “executive” is one who directs the management of the company or a major part or function of the organization. Typical executive positions are presidents, vice-presidents and controllers. An executive is expected to have a supervisory role in the company (either over personnel or a function) and would not include people who are primarily performing the specific tasks of production or providing service to customers. A “manager” directs the organization, a department, or a function of the organization. Like executives, a qualifying manager will not be overseeing the primary performance of a task. Exceptions apply when a manager or executive is coming to open a new office.

How long can executives and managers stay in L-1 status?

Executives and managers may stay in L-1 status for up to seven years. They are granted L- 1A status.

How long can “specialized knowledge” employees stay in L-1 status?

Specialized knowledge employees may stay in the US for up to five years. Their visas are called L-1Bs. The visas will be granted with an expiration of up to three years. Whether the visas are multiple entry or not depends on the applicant’s country of origin.

What about people coming to open up a new office in the US?

Persons coming to open up a new office in the US will only be granted a one-year stay in the US. USCIS will also typically require additional information about the plans for the new office such as proof that office space has been obtained, that the applicant has had the appropriate experience with the foreign company and that the foreign company will remain in existence during the full period of the applicant’s transfer to the US. If the company wants to have the L-1 visa extended beyond the initial year, it will have to demonstrate at the time of extension that it has proceeded with the plans outlined in the initial petition.
USCIS will also more closely scrutinize cases where the transferred employee also has an ownership interest in the company, since USCIS may not believe the owner intends to ever leave the US. The US employer will need to show that the firm’s need for the transferee is not indefinite and that the transferee’s foreign business interests are a strong lure for the person to return upon the expiration of the transferee’s stay in the US.

How do I apply for L-1 status?

Applications for L-1 visa status must first be approved by the Regional USCIS Service Center having jurisdiction over the location where the transferred employee will be situated. The employer must send the Application for Non-Immigrant Visa and L Supplement, petition letter, supporting documentation and filing fee to the INS Service Center. After the USCIS Service Center approves the application, the employee must apply at the US Consulate for the visa. The Consulate normally approves the application unless it believes USCIS has been defrauded or the USCIS was not aware of important information.

What if my company has a large number of applicants? Blanket Approval:

There are special procedures that make it easier for companies sending over large numbers of applicants to get L-1 visas for their employees. Companies that qualify can receive a “blanket approval” for all of their workers rather than having to apply to USCIS individually for each employee. To qualify for a blanket petition, the company must meet the following tests:
• • •

•
The US and foreign offices must be engaged in commercial trade or services;

The employer’s US office must have been in business for at least a year;

The employer must have at least three domestic or foreign branches, subsidiaries, or affiliates;

The Employer must show one of the following: a) at least ten L-1 visas were approved in the last year; b) the company had US sales of at least million dollars, or c) the US work force numbers over 1,000 workers.

The procedures for filing are largely similar to a normal L-1 application except that the employer must also submit evidence showing the above requirements are met and the firm’s petition letter can be replaced with a company letter summarizing the basis for the L- 1 petition. Once approved, individual employees can apply for L-1 visas directly at a US consulate rather without having to get preliminary approval from a USCIS Service Center.

Bundling Applications:

On November 3, 2011, USCIS announced an effort to streamline the L-1 Visa application process by allowing employers to bundle L-1 petitions in cases where the location and specialized knowledge duties of the beneficiaries are the same. The new bundled petitions process is meant to save time and energy for employers by allowing them to submit a group of separate Form I-129s for managers and employees that will be considered by the same reviewer to increase consistency and eliminate staggered approvals.

In order for USCIS to consider the bundle, all included L-1B petitions must be related to employees:

• On the same project
• Who will work at the same location and
• Who have the same specialized knowledge duties

USCIS will also consider petitions for L-1A managers included with the bundle, if they will be managing the L-1B beneficiaries who will be working on the project.

While USCIS will consider the bundles together to create a more efficient process, it is important to note that each L-1 petition will be considered on its own merits.

Are there any benefits available to L-2 spouses of L-1 visa holders?

L-2s can seek employment authorization by submitting an I-765 application after acquiring L-2 status. Applicants for employment authorization should remember, however, that it could often take up to three months to get this work authorization.

What is the difference between EB-1 Multinational Manager/Executive category for employment-based green cards and the L-1A visa category?

The EB-1 Multinational Manager/Executive category for employment-based green cards closely resembles the L-1A visa category. The green card requires a showing of all of the same evidence. The main additional requirement is that the US operation be in existence for at least a year. The category is very popular because applicants can avoid the onerous labor certification process, they can have an ownership interest in the company and they can proceed to the green card relatively quickly. Note, however, that if an employee hopes to get a green card via the multinational executive route, he or she will need a year abroad working for the company. That could be a problem for L-1s who came on blanket petitions and only had six months with the company.

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 [email protected]. 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 have a little over five years of work experience in my field and I have a bachelors degree.

Of the five years, 2 years of experience is from my current employer. Am I eligible to have my company file a PERM Labor Certification filing for me in the second preference (EB2) category?The second preference employment based category (EB2) is for those foreign national workers who are working in a position that requires a masters degree or the equivalent as the minimum requirement. A combination of a bachelor’s degree and 5 years experience after the degree is considered by the Department of Labor to be the equivalent of a masters degree.

You probably do not have 5 years counting toward an EB-2 PERM Labor Certification. As a general rule, the 5 years must be from a different company. Since you did not have 5 years experience when you started in the position, you cannot claim that the position requires at least 5 years experience.

However, experience with the company can sometimes be counted when it can be shown that the experience gained has been in other positions which are not substantially similar to the position that is being offered in the PERM application or where it can be shown that it is no longer feasible for the company to train an employee for the position.

The PERM process is complicated, long, and expensive and the slightest mistake can lead to a denial. It is highly recommended that companies hire an experienced immigration law attorney to handle their PERM applications. My wife and I are U.S. Permanent Residents. I have been spending a lot of time outside the U.S. due to work. My wife and I recently had a baby girl while outside the U.S. What is the baby’s status? Is she a Permanent Resident like us, or do we have to file a petition for her to become a Permanent Resident?

This is an important question, because depending on whether or not this is handled correctly, this could be a very simple process, or it could have tragic results.

There is a little-known rule in the immigration regulations that says that where a Permanent Resident woman gives birth abroad, the child is eligible to be admitted to the U.S. as a Permanent Resident, but only if the mother is 1) returning to the U.S. as a Permanent Resident and 2) brings the child with her on her first trip back to the U.S. after the child is born and 3) this trip is before the child’s 2nd birthday.Unfortunately many Permanent Residents do not know this rule and they either take a trip back to the U.S. without the child or they wait until after the child’s 2nd birthday to bring the child to the U.S. Where this happens, the child is not eligible to enter the U.S. as a permanent resident under this rule, and the parent must file a petition for the child to enter the U.S. as a Permanent Resident. This can result in hardship for the family, as it can take many years for a visa to become available for a petition for the child of a Permanent Resident.

Vermont Bans State Police from Asking About Legal Status for Suspected Illegally Present Immigrants

The Associated Press reports that Vermont Gov. Pete Shumlin introduced a new “bias-free” policing policy in which Vermont state police will not ask an individual about immigration status when investigating a violation. Shumlin said the policy’s aim is to focus on criminal activity and not immigration status. The policy says state police will not ask an individual about his or her immigration status when investigating a civil violation, but can ask about it in investigations of criminal offenses or suspicious activity in certain cases. Numerous civil rights groups including the ACLU have expressed support for the state deferring immigration enforcement responsibility to the federal government. Meanwhile, Jessica Vaughan, director of policy studies for the Washington-based Center for Immigration Studies, called Vermont’s policy one of the most restrictive on police in the country.

http://www.masslive.com/news/index.ssf/2011/11/vermont_bans_state_police_from.html

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Federal Court Dismisses Arizona Countersuit Over Illegal Immigration

HSToday reports that Judge Susan Bolton, of the U.S. District Court for Arizona, dismissed a countersuit by the state of Arizona against the U.S. federal government over the state’s controversial illegal immigration law, SB 1070. Judge Bolton ruled that the court could not give a ruling on Arizona’s claims that the federal government had not secured the U.S. Southwest border, thereby leaving Arizona vulnerable to harm through illegal immigration. Governor Jan Brewer expressed disappointment at the dismissal and insisted the federal government still failed to secure U.S. borders. For now, the state’s only recourse is to wait and see if the Supreme Court will hear their case and overturn the injunction imposed by lower courts on SB 1070.

http://www.hstoday.us/index.php?id=95&tx_ttnews%5Btt_news%5D=19756&cHash=2faa0 b9013d8a38d3c8e9be375541c00

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Justice Dept. Sues over SC’s New Immigration Law

Bloomberg News reports that the Justice Department sought an injunction from a federal judge as part of its lawsuit challenging the constitutionality of South Carolina’s tough new immigration law. U.S. Attorney Bill Nettles said the law is unconstitutional and violates people’s right to due process. South Carolina’s law takes effect Jan. 1 and is among the toughest in the nation.

http://www.businessweek.com/news/2011-11-09/u-s-asks-judge-to-issue-order-on-south- carolina-immigration-law.html

Fox News Latino reports that sixteen nations from Latin America and the Caribbean have asked to join in the U.S. Justice department’s lawsuit against South Carolina’s controversial law that aims to curb the number of illegally present immigrants in the state. The 16nations state in their filings that the law would lead to state-sanctioned discrimination against their citizens.

http://latino.foxnews.com/latino/news/2011/11/09/sc-immigration-law-challenged-by-16- latam-and-carib-nations/

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The Atlanta Journal Constitution reports that the 11th Circuit Court of Appeals in Atlanta has scheduled oral arguments involving Georgia and Alabama’s stringent new immigration laws for some time between Feb. 28 and March 2, 2012. Key parts of both laws will likely remain on hold for several more months as a result. Georgia is appealing a lower court’s ruling to put Georgia’s law on hold amid a court challenge brought by a coalition of civil and immigrant rights groups.

http://www.ajc.com/news/appeals-court-to-hear-1216845.html

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First Post reports that a U.S. court has denied arbitration in the visa case filed by employee Jack Palmer against the software company Infosys. Palmer had earlier alleged that Infosys was misusing H-1B visa norms by sending low-level and unskilled employees to the U.S. on B-1 visas instead, which are typically used for short-term travel. Additionally, Palmer accused Infosys of securing H-1B visas for employers who lack requisite specialized talent. The court ruled that there has to be clear and unmistakable intent from both sides to go through arbitration and that in this case there has been no clear intent. Palmer had initially filed a whistleblower complaint and thereafter a case in a civil court in the U.S.

http://www.firstpost.com/business/infosys-h-1b-visa-misuse-us-court-denies-arbitration-in- palmer-case-128511.html

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The Associated Press reports that the Justice Department urged the Supreme Court to stay out of a lawsuit involving Arizona’s immigration law, saying lower courts properly blocked tough provisions targeting illegally present immigrants. Arizona Gov. Jan Brewer is seeking to overturn the judge’s decision and wants a Supreme Court review of the case, arguing that the issues are of compelling, nationwide importance. The Justice Department disagreed saying, “That several states have recently adopted new laws in this important area is not a sufficient reason for this court to grant review” of the first appeals court decision.

http://www.google.com/hostednews/ap/article/ALeqM5g6B5KiBY7sduDJ7vaRBoJi7aBgFQ?do cId=17442ba2fbe74adea0bb61fbbe3db50a

Appeals Court to Hear GA Immigration Law Arguments Next Year

Last month, the appeals court approved the U.S. Justice

Department’s request to temporarily put parts of Alabama’s law on hold pending the

outcome of an appeal. The court, however, refused to halt a provision that would require

police in Alabama to do immigration status checks under certain circumstances. Proponents

of Georgia’s law said the court’s ruling in Alabama’s case boosts their efforts to empower

police to do immigration status checks.Infosys’ H-1B Visa Misuse: U.S. Court Denies Arbitration in Palmer Case

Govt. Asks Supreme Court to Stay Out of Arizona Immigration Case

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Immigration group warns Romney on Lamar Smith Endorsement

The Houston Chronicle reports that America’s Voice, a leading immigrant advocacy group, warned Republican presidential hopeful Mitt Romney that his endorsement by Rep. Lamar Smith (R-TX), author of several immigration bills, could later haunt his White House aspirations in a general election. Frank Sharry, executive director of America’s Voice, noted that Romney’s recent endorsements hurt his projected image as the Republican Party’s best candidate for the general election. “Romney’s recent endorsements seem calculated to alienate Latinos and shrink the number of potential battleground states…” Sharry said. America’s Voice has called Smith an “anti-immigrant ringleader” in the past.

http://blog.chron.com/rickperry/2011/10/immigration-group-warns-romney-on-smith- endorsement/

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Thousands of Families Split by U.S. Immigration Efforts

Agence France Presse reports that a study by the activist Applied Research Center (ARC) found at least 5,100 children currently living in foster care because their parents have been detained or deported. The report highlights the problems faced by children as the U.S. government steps up efforts to expel illegally present immigrants in order to raise support for immigration reform. “Detaining and deporting parents shatter families and endanger the children left behind,” the report said. “Our research found time and again that families are being left out of decision-making when it comes to the care and custody of their children,” said Seth Freed Wessler, author of the “Shattered Families” report.

http://www.google.com/hostednews/afp/article/ALeqM5jD3BsGpdhWy9QrRzUZq00Z1RyhYA ?docId=CNG.b1ecd2f45c2af3823a72fc1471df02dc.161

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ACIP Commends USCIS Action Streamlining L-1 Visa Application Process

The American Council on International Personnel (ACIP) applauded U.S. Citizenship and Immigration (USCIS) for their administrative action to create a more efficient and predictable L-1 visa process by allowing employers to bundle their visa petitions.

ACIP noted

that while the decision to allow bundled petitions is crucial, more needs to be done to

ensure that the L-1 visa system works for the needs of the U.S. economy. ACIP Executive

Director Lynn Shotwell promised to continue working with USCIS and all stakeholders to

further improve the L-1 visa system.

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Alabama to DOJ: Show Legal Authority for Enrollment Request

The Montgomery Advertiser (AL) reports that in the wake of the Department of Justice’s (DOJ) suit against Alabama’s new immigration law, Assistant U.S. Attorney General Thomas Perez sent out letters to school systems requesting information on nine topics addressing enrollment, enrollment practices and absences. Perez noted in the letter that the new immigration law, which includes a provision requiring school districts to collect information

on enrolling students’ immigration status, “may chill or discourage participation” in school activities. Alabama Attorney General Luther Strange wrote the Justice Department asking it to show where it has the power to “demand the information or compel its production.” “Otherwise, I will assume you have none, and will proceed accordingly,” he wrote.

The Justice Department responded to Strange’s rebuff with a letter asserting that federal civil rights lawyers have the authority to investigate Alabama schools for discrimination basedonimmigrationstatus–andwillcontinuetodoso. LarryCraven,Alabama’sinterim state superintendent of education, said in a statement that they would “permit the parties to resolve their outstanding issues” before making a response to the DOJ’s request.

http://www.montgomeryadvertiser.com/article/20111103/NEWS02/111030322/AG-DOJ-Show- legal-authority-enrollment-request-?odyssey=mod%7Cnewswell%7Ctext%7CFrontpage%7Cs
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Alabama Governor Open to Immigration Law Changes

The Montgomery Advertiser (AL) reports that Alabama Gov. Robert Bentley called for simplifying some elements of the state’s strict new immigration law. Bentley, speaking to the Birmingham Business Alliance, did not have specifics on what would be changed but asserted that the central parts of the bill would not be affected. Republican State Sen. Scott Beason, one of the sponsors of the immigration law, said Gov. Bentley was interested only in “simple housekeeping [changes] for clarity.” Jay Reed, director of the Alabama chapter of Associated Builders and Contractors, said he was “excited” by Bentley’s remarks, and hoped the state would revisit and clarify sections of the law dealing with businesses hiring undocumented immigrants to allow easier compliance. Beason echoed this sentiment, saying any changes would be tweaks “to make it perfectly clear to know what exactly they have to do.”

http://www.montgomeryadvertiser.com/article/20111108/NEWS02/111080302/Bentley- open-immigration-law-changes
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Birmingham School Board to Oppose Immigration Law

The Associated Press reports that members of the Birmingham Board of Education said the board will pass a resolution condemning the state’s tough immigration law. The board members said the new law is hurting students and they aim to send a clear message to lawmakers that Birmingham schools oppose the immigration measure.

http://www.wdef.com/news/state/story/Birmingham-school-board-to-oppose-immigration- law/yxwym_YrlUWh3saWIN5tQw.cspx
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Obama Condemns Alabama Immigration Law

The San Diego Union Tribune reports that President Barack Obama weighed in on Alabama’s controversial immigration law before Latino media, telling them “it’s a bad law.” The President condemned the law as “anti-immigrant” and went on to say that he felt “it doesn’t match our essential values as a country.”

http://www.signonsandiego.com/news/2011/nov/11/obama-condemns-alabama- immigration-law/*****
Perry Endorses Work Visas for Illegally Present ImmigrantsThe Associated Press reports that Texas Gov. Rick Perry proposed the federal government should extend work visas allowing illegally present immigrants to move freely between the U.S. and their home countries- but stressed that he opposes a path to citizenship. Perry said in an interview with CNN’s John King that expectations that U.S. authorities are going to arrest and deport up to 15 million illegally present immigrants aren’t realistic. Perry didn’t elaborate on what such a visa plan would look like, saying only that authorities need to determine a better way to identify illegally present immigrants and make them part of mainstream society. He also said the program would only work if the federal government first does a better job securing America’s borders through existing fencing, more border agents, and air surveillance.

http://www.boston.com/news/politics/articles/2011/11/03/perry_endorses_work_visas_for_ illegal_immigrants/

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DHS Extends Temporary Protected Status for Hondurans and Nicaraguans

Secretary of Homeland Security Janet Napolitano extended the Temporary Protected Status

(TPS) designation for Honduras and Nicaragua for 18 months. The extension is effective

Jan. 6, 2012, and will continue through July 5, 2013. 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.

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Education Secretary Praises Push to Help Immigrant Students

The Associated Press reports that Education Secretary Arne Duncan said he’s encouraged that some states are allowing the children of illegally present immigrants to pay in-state tuition at public colleges. Duncan said some of the children of illegally present immigrants came to the United States when they were infants. He said the United States is their home, where they’ve worked hard in school and taken on leadership roles. “They are either going to be taxpayers and productive citizens and entrepreneurs and innovators or they are going to be on the sidelines and a drag on the economy,” Duncan said in an interview with The Associated Press.

http://www.boston.com/news/education/higher/articles/2011/11/07/duncan_praises_push_ to_help_undocumented_students/.
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Survey Says Arizonans Would Favor Path to CitizenshipKTAR News (AZ) reports that a survey conducted by Arizona State University found that 78 percent of people surveyed across the state of Arizona favored allowing undocumented longtime residents to be able to become United States citizens if certain criteria were met. According to the poll’s findings Arizonans would support the measure if the immigrants pay a fine, pass a criminal background check here and their nation of origin, get a taxpayer I.D. number and demonstrate they can speak English.

http://ktar.com/category/local-news-articles/20111110/Survey-says-Arizonans-would- favor-path-to-citizenship/

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U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas invited all stakeholders to review and comment on a draft memorandum on the EB-5 program. To review this memorandum and provide comments, visit the Feedback Opportunities section of the USCIS website.
USCIS Invites Comments on a Draft Memorandum on the EB-5 Program*****
U.S. Limits Troubled Visa Program

The Associated Press reports that the State Department is capping the J-1 summer work and travel program, a popular exchange program for foreign college students, over persistent problems and complaints about widespread abuses. The agency published new rules that limit the number of future participants to 2011’s level and put a moratorium on new businesses becoming program sponsors. For years, the initiative has faced major problems with employers and third-party labor brokers abusing the system. This past summer, the State Department enacted stronger J-1 visa rules but complaints remained high, forcing the government to make further changes to correct the issues.

http://www.foxnews.com/us/2011/11/07/ap-newsbreak-us-limits-troubled-visa-program/*****
Half as Many Entrants Play Green-Card Lottery

The Wall Street Journal reports that eight million people tried to win a green card in the latest U.S. diversity-visa lottery, the State Department said, compared with a record 15 million last year. A State Department spokeswoman attributed the drop in entries this year to the fact that Bangladeshis, for many years the most numerous applicants, weren’t eligible to participate. Bangladesh is no longer classified as a low-immigration country to the U.S. which disqualifies it from the diversity-visa lottery which offers a quick path to permanent U.S. residence for 50,000 people each year selected randomly from countries that send few immigrants to the U.S.

http://online.wsj.com/article/SB10001424052970204358004577030370327874672.html

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Fox News Latino reports that Arizona State Senator-elect Jerry Lewis held a telephone press conference to call for a gentler approach to addressing illegal immigration. Lewis defeated Russell Pearce, author of Arizona’s tough immigration law that spawned similar bills in states across the nation, in Arizona’s first recall election for a state legislator. Lewis and other Republicans who participated in the press conference said they hoped other Republicans viewed Pearce’s defeat as a rejection of harsh immigration policies. They said they wanted to provide an alternative image of Republicans on the issue of immigration, one that embraced both enforcement and compassion. “We need to allow people who are hereArizona Upset Winner Calls for a Kinder, Gentler Tone on Immigration

a pathway to square themselves with the law,” Lewis said in response to a question from Fox News Latino.

http://latino.foxnews.com/latino/politics/2011/11/10/arizona-senator-elect-jerry-lewis-and- other-republicans-call-for-kinder-gentler/

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Republican Bill Would Allow Border Patrol to Ignore Environmental Laws

McClatchy Newspapers reports that as a part of the 2010 “Pledge to America,” House Republicans have proposed the National Security and Federal Lands Protection Act which gives the U.S. Border Patrol the authority to ignore 36 environmental laws on federal lands in a 100-mile zone along the Canadian and Mexican borders. Under the plan, the Border Patrol would have free rein to build roads and offices, put up fences and set up surveillance equipment and sensors in all national parks, forests and federal land in the zone.

Rep. Rob Bishop (R-Utah), the bill’s chief sponsor, said the bill is needed because the Border Patrol is encumbered by environmental regulations and does not have sufficient access to millions of acres of federally controlled land. Jane Danowitz, the Pew Environment Group’s director of public lands, called the plan a sweeping waiver of environmental laws that would allow a single federal agency to destroy wildlife habitat and wetlands and hurt water quality. The House Natural Resources Committee passed the plan on a 26-17 party-line vote this month and a vote by the full House is expected soon.

http://www.kansascity.com/2011/10/23/3224702/republican-bill-would-allow-border.html

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The Hill (DC) reports that Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee, threatened to subpoena the Department of Homeland Security (DHS) for a list of illegally present immigrants who the agency has declined to detain. Rep. Smith requested a list in August of illegally present immigrants who were not pursued by DHS and Immigration and Customs Enforcement (ICE) under new guidelines that allow the agencies to prioritize the deportation of undocumented aliens with criminal histories over those who are otherwise law-abiding. DHS responded to Smith’s request with a list breaking down the numbers of illegally present immigrants, deported, detained, and not taken into custody but Smith responded by saying that the letter was a summary and that he wanted a specific list delivered to him immediately or he would consider taking further action.

http://thehill.com/homenews/house/189913-gop-judiciary-chairman-threatens-to- subpoena-dhs-over-deportations

The Washington Times reports that House Republicans on an immigration subcommittee voted to authorize a subpoena to get data on illegally present immigrants against whom the government has declined to pursue deportation cases. The 7-4 party-line vote came two days after the Department of Homeland Security (DHS) failed to meet an Oct. 31 deadline given to DHS Secretary Janet A. Napolitano by Judiciary Committee Chairman Lamar Smith. The four Democrats on the committee voted against the subpoena, arguing the

Judiciary Chairman Threatens to Subpoena DHS Over Deportationsadministration is making a good-faith effort to compile the information and should be given more time. Meanwhile, the Republicans on the committee insist the subpoena is a necessary measure to get the information they requested.

http://www.washingtontimes.com/news/2011/nov/2/subpoena-oked-see-administrations- illegal-immigrat/?page=all

*****

Greg Siskind’s Blog on ILW.com

• California Senate Passes Its Own Version of Dream Act
• Justice Department Suing South Carolina Over Immigration Law
• New Republic: ICE Officials Ignoring White House Mandate on Prosecutorial

  Discretion

• USCIS Denies Visa to Head of One of Silicon Valley’s Hottest Startups
• USCIS Caves and Approves Visa for Entrepreneur
• Rick Perry Backs Work Visas for Illegally Present Immigrants
• NFAP Report: L-1 Denials in India are Soaring
• Voters Boot Architect of Arizona’s SB1070
• Justice Department Asks Supreme Court to Pass on Arizona Case
• Lottery Draws Half as Many Applicants
• GOP in More Trouble with Hispanics than President
• A Lesson in the Chain of Command
• Rubio Latest Republican to Express Fear Over Image With Latinos
• Does H-1B Usage Show Economy Picking Up?

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

  The Visalaw Healthcare Immigration Blog

  Karen Weinstock’s Visalaw Georgia Immigration Blog

• DEPORTATIONS SOAR NATIONWIDE BUT ESPECIALLY IN GEORGIA-ALABAMA AREA

9. State Department Visa Bulletin: December 2011

Number 39 Volume IX Washington, D.C.

A. STATUTORY NUMBERS

• ICE Issues New Round of I-9 Audit Notices
• How ICE Fines are Calculated

• New HPSA Shortage Areas Announced

1. This bulletin summarizes the availability of immigrant numbers during December. 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 November 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

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

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

FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for

fourth preference.

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

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

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

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

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

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

All CHINA-
Family- Chargeability mainland INDIA MEXICO PHILIPPINES Sponsored Areas Except born
Those Listed

F1 01SEP04

1. F2A 22MAR09
2. F2B 15AUG03

3. F3 08OCT01
4. F4 15JUL00

01SEP04 01SEP04 08APR93 01MAR97

22MAR09 22MAR09 08FEB09 22MAR09

15AUG03 15AUG03 22NOV92 15AUG01

08OCT01 08OCT01 15DEC92 08JUL92

15JUL00 15JUL00 01MAY96 08SEP88

*NOTE: For December, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08FEB09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08FEB09 and earlier than 22MAR09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

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

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

numbers not required for fourth and fifth preferences.

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

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

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

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

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

Employment- Based

All CHINA-
Chargeability mainland INDIA MEXICO PHILIPPINES Areas Except born

Those Listed

1st C C C C C

2nd C 15MAR0815MAR08C C

3rd 15JAN06 08SEP04 01AUG02 15JAN06 15JAN06

Other Workers 01JAN06 22APR03 22JUL02 01JAN06 01JAN06

4th C C C C C

Certain
Religious C C Workers

5th
Targeted
Employment Areas/ C C Regional Centers
and Pilot Programs
C C 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 December, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA

18,500
Except: Egypt 12,700 Ethiopia 13,500 Nigeria 12,000
ASIA

15,000

EUROPE

13,500
NORTH AMERICA (BAHAMAS)

5

OCEANIA

575
SOUTH AMERICA, and the CARIBBEAN

600

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 availabilitythrough 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 JANUARY

For January, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA

24,700
Except: Egypt 16,800 Ethiopia 16,800 Nigeria 14,500
ASIA

18,500

EUROPE

16,500
NORTH AMERICA (BAHAMAS)

6

OCEANIA

650
SOUTH AMERICA, and the CARIBBEAN

675
D. OBTAINING THE MONTHLY VISA BULLETIN

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

http://www.travel.state.gov/visa/bulletin/bulletin_1360.html

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

[email protected]

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:

[email protected] 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:

[email protected]

(This address cannot be used to subscribe to the Visa Bulletin.)

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