June 2011

for the 2012 annual conference in Nashville, the Transformation Liaison Committee which is dealing with USCIS’ conversion to an all electronic filing system, and the AILA Media Advocacy Committee which works to promote AILA’s pro-immigration views in local and national media.

I also was recognized by Who’s Who Legal in its annual ranking of top corporate immigration lawyers in the world. Who’s Who placed me sixth on its global list and also listed three other Siskind Susser lawyers on the list. Yvette Sebelist and Lynn Susser were listed with me amongst five attorneys in Tennessee and Karen Weinstock was one of ten lawyers listed in Georgia. You can read more at www.whoswholegal.com.news/analysis/article/28997/most-highly-regarded-firm- corporate-immigraton-2011.

*****

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

In 2000, President Clinton signed legislation creating the Delta Regional Authority, a federal-state partnership designed to promote economic development and improve the quality of life for the people of the Mississippi River Delta region. One of the program’s chief objectives is to improve health care for impoverished communities in the 252 counties under the DRA’s jurisdiction. Because the region has faced persistent physician shortages for many years, the DRA established a J-1 waiver program to attract international physicians to the DRA’s many communities. The program has helped dozens and dozens of communities throughout the Delta region.

Which states and counties are covered?

The DRA covers counties and parishes in Alabama, Arkansas, Illinois, Louisiana, Mississippi, Missouri and Tennessee. The counties and parishes in the region follow the Mississippi River up to Southern Illinois. The exception is Alabama which has a number of counties included as well. The following counties are covered:

Alabama

Barbour Choctaw Dallas
Hale Marengo Pickens Washington

Bullock Clarke Escambia Lowndes Monroe Russell WilcoxButler Conecuh Greene Macon Perry Sumter

Arkansas

Arkansas Bradley Clay Crittenden Desha Grant Izard Lawrence Lonoke Monroe Poinsett Randolph Stone

Van BurenAshley Calhoun Cleveland Cross Drew Greene Jackson Lee Marion Ouachita Prairie Searcy
St. Francis White
Baxter
Chicot Craighead Dallas
Fulton Independence Jefferson Lincoln Mississippi Phillips Pulaski

Sharp Union WoodruffIllinois

Kentucky

Louisiana

Alexander Hamilton Johnson Pope Saline Williamson

Franklin Hardin Massac Pulaski Union

Gallatin Jackson Perry Randolph White

Ballard Carlisle Fulton Hickman Lyon McLean Trigg

Caldwell Christian Graves Hopkins Marshall Muhlenberg Union

Calloway Crittenden Henderson Livingston McCracken Todd Webster
Acadia Assumption Bienville Claiborne DeSoto Evangeline Iberia
Grant Jefferson Davis Lincoln Morehouse Ouachita Rapides

Red River
St. Charles
St. John the Baptist Tangipahoa Vermillion Washington
West FelicianaAllen Avoyelles Caldwell Concordia East Carroll Franklin Iberville Lafourche Livingston Natchitoches Plaquemines Richland

St. Helena
St. Landry
St. Mary
Tensas
Webster
West Baton Rouge WinnAscension Beauregard Cameron Catahoula
East Baton Rouge East Feliciana Jackson

Jefferson
La Salle Madison Orleans Pointe Coupee St. Bernard St. James

St. Martin Union
West Carroll
Mississippi
Adams Benton Claiborne Covington Grenada Humphreys Jasper Leflore Marion Panola Rankin Sunflower Tippah Walthall Wilkinson

Amite Bolivar Coahoma Desoto Hinds Issaquena Lafayette Lincoln Marshall Pike Sharkey Tallahatchie Tunica Warren Yalobusha

Attala Carroll Copiah Franklin Holmes Jefferson Lawrence Madison Montgomery Quitman Smith Simpson Tate

Union Washington Yazoo
Missouri

Tennessee

What is the role of state health departments under the DRA program?

The DRA adjudicates its waiver cases, but because it is a partnership between the federal government and eight states, the DRA seeks the input of state health agencies when it reviews waiver petitions. State health agencies are notified about waiver applications in their respective states and are given a timeframe in which to submit comments.

What are the recruiting requirements?

Employers are required to undertake a good-faith effort to recruit an American physician in the same salary range, without success, for 60 days before submitting the waiver petition to the DRA. Recruiting must be undertaken at three levels:

1. National Level: Newspapers with national circulation (e.g. USA Today) or medical journals (e.g. New England Journal of Medicine).

2. State level: Major in-state newspaper (e.g. Jackson Clarion Ledger), local newspapers or magazines, or in-state medical journals or publications.

3. Letters to in-state medical schools.
The DRA will also consider additional documentation such as online recruiting.

What level of commitment must the physician make?

The physician must agree to work for at least three years in a community in a DRA county or parish. The physician must provide medical care for not less than forty (40) hours a week and the work location must be a site in a Health Professional Shortage Area (HPSA), Mental Health Professional Shortage Area (MHPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). Only psychiatrists can base a waiver on working in an MHPSA.

What kinds of physicians qualify for DRA waivers?

DRA waivers are available to primary care physicians (general or family practice, general internal medicine, pediatrics, obstetrics/gynecology and psychiatry). WaiversBollinger Carter Douglas Iron
New Madrid Oregon Perry Ripley

St. Francois Texas Wright

Butler Crawford Dunklin Madison
Ozark
Phelps
Scott
Ste. Genevieve Washington

Cape Girardeau Dent
Howell Mississippi Pemiscot Reynolds Shannon Stoddard Wayne
Benton Crockett Fayette Hardin Henry Madison ShelbyCarroll Decatur Gibson Haywood Lake McNairy Tipton

Chester Dyer Hardeman Henderson Lauderdale Obion Weakleyare also available to physicians working in specialty medicine, but additional requirements must be met including:

• Providing a letter from the waiver sponsor outlining the reasons a physician with the particular specialty is needed in the area and containing information on the availability of the specialty services such as the closest location where the specialty is available, whether public transportation is available and evidence that the specialty practice would be viable.
• A description of the service area demographics
• A letter of support regarding the need for the specialty from the Chief Medical

  Officer of the facility where the J-1 doctor will provide services

• Two letters of support regarding the need for the specialty from local primary

  care physicians or facility representatives (the person writing the letter may

  not be affiliated with the waiver sponsor)

• Any other evidence documenting the shortage such as letters of support from other specialists or local health officers in the service area.

Note that the DRA prefers a patient to physician ratio of 2000 to 1 or worse when evaluating whether a shortage is severe enough to merit a waiver.

Does the DRA permit restrictive covenants and non-compete clauses?

Contract terms such as non-compete clauses or restrictive covenants that take effect after the contract term is over are barred. DRA rules do, however, require a liquidated damages clause be included.

What is the liquidated damages clause that must be incorporated in to the employment agreement?

The following language must be incorporated in to the employment agreement (note that the contract may include an additional liquidated damages clause as long as it is independent of this language):

LIQUIDATED DAMAGES CLAUSE

Any breach or non-fulfillment of conditions will be considered a substantial breach of this agreement by you. If there is such a breach (NAME OF EMPLOYER) may, at its option, terminate this agreement immediately. In addition, it is agreed that (NAME OF EMPLOYER) will be substantially damaged by your failure to remain at (NAME OF EMPLOYER) in the practice of medicine for a minimum of three years and that, considering that precise damaged are difficult to calculate, you will agree to pay (NAME OF EMPLOYER) the sum of $250,000.00 if you fail to fulfill any portion of your minimum three-year contract. Should you perform any portion of the employment contract, you agree to pay a pro rata share based upon the number of months you failed to fulfill (i.e. $6,945.00 per month). In addition to liquidated damages, (NAME OF EMPLOYER) will recover from you any other consequential damages, and reasonable attorney fees costs and expenses, due to the failure to provide services to (NAME OF EMPLOYER) for a minimum of three years, EXCEPT THAT, the full-time practice of medicine at another licensed medical facility, in Health Professional Shortage area (as defined by the United States Public Health Service) with the Delta Regional Authority (as defined by DRA) shall be considered the same a fulltime practice of medicine at (NAME OF EMPLOYER) for purpose of this paragraph. In the H-1B status and proof of the doctor’s possession of a license if a license wasn’t submitted with the original J-1 application.

The DRA will send a site survey form every six months during the employment agreement to verify that the physician is working at the correct location and also to collect information on the patient population being served. The survey must be returned within 15 business days from the issued date on the survey form. Failure to return the form will result in the DRA notifying USCIS and/or DOS.

The DRA also conducts random, unannounced site visits during the three year employment period and will report compliance violations, as appropriate, to the USCIS and/or DOS.

Will the DRA sponsor National Interest Waivers?

Yes. But applicants must have previously been granted a DRA J-1 waiver or be applying for a J-1 waiver. The application should contain the following:

• A physician must submit a contract with a term of at least five years committing the physician to work in a DRA underserved county or parish
• A support letter from the physician’s employer
• A statement from the physician explaining the reason for pursuing the NIW
• An attorney letter stating, “to the best of their knowledge, the information in the application is truthful, and that he/she believes the applicant is eligible for a NIW.”

Where can I learn more information about the DRA J-1 and NIW programs?

The DRA posts all information about the program on its web site at http://www.dra.gov/programs/doctors/.

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

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

***
1) Question:

My husband has just gotten his visa approved today and will be receiving it soon. We are just wondering, once he gets to the United States, how should he obtain a driver’s license, social security number, and any other documentation he may need?

Answer:
When a foreign national enters the U.S. on an immigrant visa their passport is stamped with a temporary I-551 stamp. This stamp is proof of their permanent resident status until they receive their green card in the mail. The foreign national can use the passport with the I-551 stamp to apply for a social security card from the Social Security Administration and to apply for a driver’s license.

Permanent residents who enter as conditional residents (CR) are initially given a green card valid for two years. During the 90 days before the card expires, the foreign national must file a joint application with their spouse to remove the condition from their residence. At that time, the foreign national will be expected to show that the marriage is bona fide.

If the foreign national divorces prior to this time, they should file an application for a waiver of the application to remove the condition from their residence. They will be required to show that the marriage was bona fide even though it ended in divorce.

All permanent residents are required to file an AR-11 change of address form any time they move. Male permanent residents between the ages of 18 and 26 must register with the Selective Services Administration.

2) Question:

My wife and I are in the U.S. in L status and are about to have a child. Since our child will be a U.S. citizen, does that grant us any immigration rights? Are we entitled to stay in the U.S. until our child is old enough to take care of himself?

Answer:

It is true that (with a few exceptions) a child born in the U.S. is granted U.S. citizenship even if the child’s parents are in the U.S. in nonimmigrant status or even out of status. But having a U.S. citizen child, by itself, does not grant the child’s parents any immigration benefits. The idea of the “anchor baby” is a myth. Even though your child is a U.S. citizen and therefore has a right to live in the U.S., you and your wife do not. You must maintain your L nonimmigrant status and extend or change/adjust your status as necessary. When your child turns 21, then they can petition for you and your wife to become permanent residents.

A post-9/11 registration effort ends, but not its effects

The New York Times reports that NSEERS, a ‘special registration’ program created by the Department of Homeland Security in the months following the 9/11 attacks has

been discontinued because it ‘no longer provides a unique security value.’ The program required thousands of Arab and Muslim men to register with authorities in order to uncover terror links and immigration violations.

Despite the end of ‘special registration,’ immigration experts claim that thousands of illegally present immigrants are still facing deportation because of information uncovered using the program. While only 11 of the more than 85,000 men registered in the first year of the program were found to have ties to terrorism, thousands were found to be illegally present immigrants.

http://www.nytimes.com/2011/05/31/nyregion/antiterrorism-registry-ends-but-its- effects-remain.html
******

89 Percent of Workers at Dairy Farm Illegal, Feds Say

KMGH News Denver reports that a routine inspection of a Colorado dairy farm revealed that 89 percent of its employees — 53 workers — were not authorized to work in the United States. Twenty employees at Wildcat Dairy were arrested on suspicion of using forged Social Security and Alien registration cards. Those who were arrested were being held on a no-bond immigration hold. If they are convicted, they face deportation.

http://www.thedenverchannel.com/news/28096764/detail.html

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US Overrules Patrick on Immigration

The US government will force the state of Massachusetts to join the controversial Secure Communities program to detect and deport illegally present immigrants, despite Governor Deval Patrick’s refusal to endorse it. Launched in 2008, the Secure Communities program runs the names and fingerprints of everyone arrested through federal immigration and criminal databases to check the immigration status of criminal offenders, especially violent criminals. Boston is the only city in the Massachusetts jurisdiction in the program. Though Governor Patrick’s refusal to endorse the measure may delay implementation, one Homeland Security official asserted that the Governor can do little to impede the program’s statewide implementation by 2013.

http://articles.boston.com/2011-06-07/news/29630407_1_immigrant-advocates- illegal-immigrants-federal-immigration
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U.S. labor judge orders back-wages for Thai workers

The Associated Press reports that Administrative Law Judge William Dorsey ordered a Los Angeles-based farm labor contractor, Global Horizons Inc., to pay more than $340,000 for failing to properly pay Thai farmworkers for their work on two Hawaiifarms in 2003. Global Horizons recruited foreign workers under the federal government’s agricultural guest worker program, known as H-2A.

Global Horizons has been barred from using the H-2A program since a separate labor ruling in 2006 and is no longer in operation. The company has been subject to at least four separate labor cases and a federal lawsuit filed by the Equal Employment Opportunity Commission.

http://finance.yahoo.com/news/US-labor-judge-orders-apf-2360078088.html?x=0

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U.S. court to decide on deporting Japanese couple

The Associated Press reports that the U.S. Supreme Court will decide whether a Japanese couple should be deported because of convictions resulting from filing a false tax return. Akio and Fusako Kawashima became permanent lawful residents in 1984, but pled guilty to subscribing to a false statement on a federal tax return and now face deportation. The 9th U.S. Circuit Court of Appeals upheld their deportation, but the Supreme Court will hear the couple’s appeal.

http://www.wfmj.com/story/14696913/court-to-decide-if-japanese-couple-can-be- deported
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Supreme Court OKs Arizona’s business immigration law

The Washington Times reports that the Supreme Court upheld an Arizona law that requires businesses to check their employees’ immigration statuses using E-Verify. The court’s ruled that while federal law says the government cannot make such immigration status checks mandatory, it does not bar the states from doing so.

Chief Justice John Roberts said ‘given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority.’ In his dissent, Justice Breyer said ‘the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens.’

The decision is not expected to impact challenges to the 2010 Arizona law and similar laws in other states. Those laws are much broader than the 2007 Arizona law.

http://www.washingtontimes.com/news/2011/may/26/supreme-court-ok-arizonas- business-immigration-law/
******

Court Orders New Look at Pennsylvania City’s Immigration Law

The Associated Press reports that the Supreme Court ordered a federal appeals court on Monday to reexamine a Pennsylvania city’s crackdown on illegally present immigrants in light of the high court’s recent decision upholding similar Arizona employer-sanctions. The measure in question allowed the city of Hazleton to deny permits to businesses that hire illegally present immigrants and fine landlords who rent to them which inspired similar laws around the country.http://news.yahoo.com/s/ap/20110606/ap_on_re_us/us_supreme_court_illegal_im migrant_crackdown
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Supreme Court Refuses to Review California Immigrant Tuition Law

The San Jose Mercury News reports that the Supreme Court refused to review a California policy that allows undocumented immigrants to pay the same in-state tuition to public universities as other state residents. The case has attracted widespread attention across the country, largely because at least nine other states have similar laws that are expected to come under legal attack.

http://www.mercurynews.com/crime-courts/ci_18215505

The Los Angeles Times reports that the decision allowing California to continue granting reduced, in-state tuition to college students who are undocumented immigrants is likely to bolster similar proposals across the nation as well as a California measure to provide financial aid for the undocumented. The policy was ruled legal because it grants in-state tuition on the basis of students’ graduation from California high schools, not on their citizenship.

Detractors worry that California’s already struggling economy cannot handle the estimated $32.2 million supplying additional public funding would cost.

Supporters of the aid insist that funding would become more readily available for all students, not just immigrants, and a higher level of education is better for the overall economic well being of the state.

http://articles.latimes.com/2011/jun/07/local/la-me-0607-court-tuition-20110607

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Hispanic GOP group urges Porsche to build HQ outside Georgia

The Atlanta Journal Constitution reports that Somos Republicans, an Arizona-based organization aimed at increasing the number of Latinos voting for Republican candidates, issued an open letter criticizing Georgia’s new immigration enforcement law, House Bill 87. The letter urged Porsche to reconsider building its new plant in Georgia because some critics of the bill have already organized boycotts of Georgia- based companies.

Georgia House Bill 87 will take effect on July 1st, authorizing law enforcement to investigate the immigration status of individuals they believe have committed state or federal crimes and who cannot produce proper identification.

http://www.ajc.com/news/georgia-politics-elections/hispanic-gop-group-urges- 954917.html
******
South Carolina House approves immigration crackdown bill

The State (SC) reports that the South Carolina House approved an Arizona-style crackdown on illegally present immigrants. The bill would require law enforcement officers to check the immigration status of people they pull over for traffic violations or stop on suspicion of other violations. Supporters say illegally present immigrants are a burden on state resources and hope the bill will ensure that jobs go to legal residents. Detractors fear the bill will lead to racial profiling, making a suspect of all Hispanic-Americans in the state.

http://www.miamiherald.com/2011/05/25/2233839/sc-house-approves- immigration.html
******

CT Senate passes in-state tuition bill for undocumented immigrants

The Hartford Courant reports that the Connecticut Senate passed a bill that will allow illegally present immigrants to pay in-state tuition rates at the state’s public colleges and universities. The bill has already passed the House and Governor Dannel P. Malloy said he will sign it.

Supporters of the bill say it is an unfair disadvantage for the children of illegally present immigrants to pay higher rates for education when they were brought to the U.S. through no choice of their own. Critics, on the other hand, argue that the bill will reward people who break the rules and attract illegally present immigrants from neighboring states to take advantage of cheaper education.

http://articles.courant.com/2011-05-24/news/hc-senate-tuition-paid-sick-leave- 05220110524_1_undocumented-immigrants-tuition-rates-public-colleges ******

Indigenous immigrants stumped by both Spanish, English

The Associated Press reports that many people living in the U.S. of Hispanic American Indian origins speak neither Spanish nor English, but rather ancient indigenous languages that existed long before the first Spanish conquistadores arrived. According to data from the Mexican consulate, 35,000 of the approximately 500,000 Mexicans living in New York City speak some form of these indigenous languages. This language barrier has caused problems for some illegally present immigrants and as a result, there is a growing demand for Spanish classes for Latin American immigrants. The Unit of Volunteers for Adult Education, for example, holds classes in Manhattan, Brooklyn, and Staten Island.

http://www.chron.com/disp/story.mpl/nation/7585644.html

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18,300 Signatures Submitted in Effort to Oust Senator Pearce

Capitol Media Services reports that foes of Arizona State Senate President Russell Pearce submitted more than 18,300 signatures Monday to force what would be the first-ever recall of a state elected official. Detractors cite Pearce’s active role in laws aimed at undocumented immigrants as the reason for the recall. The number ofsignatures that are actually valid, that is from registered voters who reside in his district, remains to be seen and Pearce firmly believes many of the signatures will not be counted. Should there be a vote, it could take place as late as March depending on how quickly the petition moves through the proper state offices.

http://azstarnet.com/news/local/govt-and-politics/elections/article_aa9d0bdc-3b2a- 5c2a-a7b2-0c39ad434164.html
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U.S. Green-Card Lottery Scrutinized After Blunder

The Wall Street Journal reports that the State Department’s Inspector General is reviewing the government’s green-card lottery after this year’s results were thrown out and thousands of people who had been told they won a chance for a U.S. resident visa were later notified they would have to re-enter the drawing. This year, a record 15 million people from around the world submitted applications to the drawing, which offers a quick path to permanent residence for 50,000 people selected by random draw. The lottery is designed to help citizens of countries with low rates of immigration. The 22,000 winners were told by the State Department that the drawing would have to be held again because of a computer glitch which caused 90% of the winners to be selected from the first two days of applications instead of the entire 30-day registration.

http://online.wsj.com/article/SB10001424052702304474804576368022419152178. html
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Illinois to Create Private Scholarship Fund for Undocumented Immigrants

Fox News Latino reports that Illinois, which passed its state version of the DREAM Act, is on the verge of becoming the first state to create a private college scholarship fund for the children of undocumented immigrants. The Illinois DREAM Act creates a state fund that would route private donations to as many as 95,000 undocumented immigrants. In addition, the measure would train high school counselors to assist undocumented children forward their educational careers. The Illinois Dream Act has no impact on a person’s immigration status and does not offer a path to citizenship like the proposed federal law by the same name.

http://latino.foxnews.mobi/quickPage.html?page=30414&external=938778.proteus.f ma
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Sen. Graham blames lack of support for his immigration stance on Fox News

Newsbusters reports that Senator Lindsey Graham (R-SC) blamed the 24 hour news cycle for stifling bipartisanship, making it difficult to pass comprehensive immigration reform. Specifically, Graham criticized Fox News for using the controversial term
‘amnesty’ in reference to his stance on immigration reform that includes a pathway to citizenship for some illegally present immigrants.

http://newsbusters.org/blogs/edwin-mora/2011/05/20/sen-lindsey-graham-blames- fnc-lack-support-his-immigration-position
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Gingrich suggests immigration plan

Reuters reports that Newt Gingrich, the former speaker of the House of Representatives who launched his 2012 presidential bid last month, suggested that some illegally present immigrants ‘may have earned the right to become legal.’ Gingrich recounted how World War Two-era draft boards chose who would serve in the military and suggested that a similar method could be used to distinguish those illegally present immigrants who may have earned the right of legal status.

http://www.reuters.com/article/2011/05/19/us-usa-campaign-gingrich- idUSTRE74C3UV20110519
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Measure revived to give troops’ kin legal status

The Arizona Daily Star reports that Senator Bob Menendez (D-NJ) reintroduced The Military Families Act. This legislation would grant permanent-resident status to the immigrant relatives of active-duty military personnel as well as immigrant relatives of those who have died while serving in the military. Menendez first introduced the Military Families Act in 2009 but it stalled alongside the DREAM Act and failed to pass.

http://azstarnet.com/news/article_68fd9340-755a-55e6-bb6a-d1674dd2c2eb.html

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United Press International reports that forty-eight members of Congress asked immigration officials to hold off rejecting visa petitions by same-sex couples when one partner is not a U.S. citizen. They have asked for a delay until courts determine if the Defense of Marriage Act, which prevents citizens from obtaining green cards for spouses of the same sex, is constitutional. Homeland security officials say they will exercise discretion but will continue to enforce the law.

http://www.upi.com/Top_News/US/2011/06/06/US-asked-to-delay-visa-refusals-for- gays/UPI-65381307379062/
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Greg Siskind’s Blog on ILW.com

U.S. Asked to Delay Visa Refusals for Same-Sex Couples

• Immigrant of the Day: Dirk Nowitzki – NBA Champ
• July Visa Bulletin Relased
• Judge Orders Sheriff Joe to Pay $94K in Lawyers’ Fees; Taxpayers to Get Stuck with Bill
• Surprise! – Latinos DO Think Immigration is an Important Issue
• Alabama Apparently Not Ready to Put Past Behind It
• Justice Delayed is Justice Denied
• White House Going After Immigration Services Scams
• New House GOP Group Promoting Pro-Business Immigration Policies
• Supreme Court OKs California Granting In State Tuition for Illegally Present Immigrants
• Massachusetts Dumps Secure Communities
• OAS’ Legal Tribunal Orders US to Stop Deportations to Haiti
• Sheriff Joe Gives in to Justice Department
• Pearce Likely Facing Recall Election
• Republicans Showing Pragmatism on Immigration – or Just Wishful Thinking
• Secure Communities Over in New York
• My Grandfather Ben
• We Apologize for any Inconvenience
• Supreme Court Upholds State Business License, E-Verify Sanctions Laws
• Arizona Trying to Raise Money to Build its Own Border Fence

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

USCIS LAUNCHES I-9 PORTAL

The Visalaw Healthcare Immigration Blog

PT Board Settles Lawsuit Challenging Bar on Exams for Filipinos and Other Nationalities

Karen Weinstock’s Visalaw Georgia Immigration Blog

• REPORT FINDS IMMIGRANTS ARE MORE EDUCATED
• IMMIGRANTS ARE LEAVING GEORGIA BEFORE HB87 IMPLEMENTED
• GEORGIA FARMS SUFFERING FROM HB87, PRODUCE ROTTING
• HB87 HURTING GEORGIA FARMERS
• E-VERIFY ARTICLE
• SUIT FILED OVER GEORGIA’S IMMIGRATION LAW HB87
• BIG NEWS FOR HB87 – E-VERIFY PROVISION IS HERE TO STAY!

Number 33 Volume IX Washington, D.C.

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

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

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

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

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.)

Those Listed

1st C C C C C All CHINA-Employment- Chargeability mainland INDIA MEXICO PHILIPPINES Based Areas Except born

2nd C

3rd 15SEP0515OCT06 15OCT06C C

15MAY04 22APR02 22DEC04 15SEP05

Other Workers08NOV03 22APR03 22APR02 08NOV03 08NOV03 4th C

Certain Religious C WorkersC C C C

C C C C

5th Targeted Employment Areas/ Regional Centers and Pilot ProgramsCCCCC
*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-2011 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 June, immigrant numbers in the DV category are available to qualified DV-2011 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
49,300

Except: Egypt 34,300 Ethiopia 28,525 Nigeria 17,150 ASIA

28,600

EUROPE
29,450

Except: Uzbekistan 27,800 NORTH AMERICA (BAHAMAS)12

OCEANIA

1,300

SOUTH AMERICA, and the CARIBBEAN

1,300

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-2011 program ends as of September 30, 2011. DV visas may not be issued to DV-2011 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, 2011. DV visa availability through the very end of FY-2011 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 JULY

For July, immigrant numbers in the DV category are available to qualified DV- 2011 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
57,600

Except: Egypt 35,000 Ethiopia 30,650 Nigeria 18,500

ASIA
33,775

EUROPE
33,000

Except: Uzbekistan 28,200 NORTH AMERICA (BAHAMAS)

12

OCEANIA

1,400

SOUTH AMERICA, and the CARIBBEAN

1,400

D. VISA AVAILABILITY IN THE EMPLOYMENT SECOND PREFERENCE CATEGORY

As mentioned in the May Visa Bulletin, Section 202(a)(5) of the Immigration and Nationality Act (INA) prescribes rules for the use of potentially “otherwise unused” Employment numbers. During May the India Employment Second preference cut-off date is governing the use of such numbers, because India had reached its Employment Second annual limit.

Since October there has been heavy demand by applicants “upgrading” their status from Employment Third to Employment Second preference. The rapid forward movement of the India Employment Second preference cut-off date in May had the potential to greatly increase such demand. Therefore, the determination of the June cut-off dates was delayed in order to monitor this demand. At this time the amount of new “upgrade” demand has been minimal; this has allowed the Employment Second preference cut-off date governing the use of the Section 202(a)(5) numbers to advance significantly for June. The same cut-off date will apply to both China and India Employment Second preference. Note that under INA Section 203(e) all of the “otherwise unused” numbers must be provided strictly in priority date order regardless of the applicant’s chargeability.

Cut-off date movement for upcoming months cannot be guaranteed, and because of the variables involved, no assumptions should be made until the dates are formally announced. Should there be a sudden or significant increase in India and China Employment Second preference demand it may be necessary to slow, stop, or retrogress that cut-off date as we approach the end of fiscal year 2011.

E. OBTAININGTHEMONTHLYVISABULLETIN
The Department of State’s Bureau of Consular Affairs offers the monthly “Visa

Bulletin” on the World Wide Web. The Web address to access the Bulletin is:

http://travel.state.gov

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

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

listserv@calist.state.gov

and in the message body type:

Subscribe Visa-Bulletin First name/Last name

(example: Subscribe Visa-Bulletin Sally Doe)

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

listserv@calist.state.gov

and in the message body type:

Signoff Visa-Bulletin

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

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

visabulletin@state.gov

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

Department of State Publication 9514 CA/VO:May 11, 2011

Summary of the Legal Workforce Act

By Greg Siskind (gsiskind@visalaw.com)

www.visalaw.com

Section 1. Short Title – The bill may be cited as the Legal Workforce Act. Section 2. Employment Eligibility Verification Process.

Section B of INA Section 274A is replaced with new language. First, it now mandates that an employee’s social security number be recorded on the I-9 form (if the individual has a social security number) and if the employee does not attest to US citizenship, the employer obtains identification and employment authorization documentation specified by DHS. Plus the employer should still examine the List A, B and C documents for I-9 compliance as is the case under current law.

For list A, US passports and passport cards must be unexpired. Same for green cards and employment authorization cards. Only those items are now allowed unless DHS agency. Employers can have decisions to debar reviewed pursuant to Section 9.4 of the Federal Acquisition Regulation.

Criminal penalties are increased to a fine of $15,000 per unauthorized worker and imprisonment for not less than a year, or both.

Section 9. Protection of Social Security Administration Programs.

SSA and DHS shall enter in to an agreement beginning in fiscal year 2013 to provide the funds to SSA to cover setting up and running the new system. If an agreement can’t be reached in time, the latest agreement between the two agencies shall be deemed in effect on an interim basis.

Section 10. Fraud Prevention.

DHS and SSA shall establish a system to block the use of social security numbers found to have been used fraudulently in the E-Verify system unless the true holder can prove he or she is the true holder.

DHS , in consultation with SSA, shall set up a program to provide a reliable, secure way for identity fraud victims to suspend the use of their social security account for purposes of employment authorization.

Aliens with final orders of removal, voluntary departure orders, is voluntarily returned or is a nonimmigrant with an expired work authorization shall have their social security numbers blocked for use in E-Verify.

Section 11. Biometric Employment Eligibility Program.

Creates authorization to establish a biometric E-Verify program to provide for identification and employment eligibility verification. Private contractors can be used to help establish the program.

Section 12. Administrative Procedures.