September 2012

Dear Readers:

Immigration lawyers have long suspected USCIS hasn’t been close to accurate in issuing the allotted 65,000 H-1B visas under the annual cap. The American Immigration Lawyers Association and other organizations and individuals have pressed the agency for years for details on how USCIS determines that the cap has been reached. The answers have always been vague and only raised more questions.

So a hearty congratulations are to be offered to my friend immigration lawyer David Rubman in Chicago who has finally gotten answers that confirmed the worst. David filed a Freedom of Information Act request with USCIS and after months of waiting got a chart showing five years of figures that demonstrated that USCIS has shorted the employer community about 45,000 H-1Bs over the last five years. David shared his findings with me and my blog was the first place anywhere to report the findings (http://blogs.ilw.com/gregsiskind/2012/09/breaking-uscis-systematically-undercounting-h- 1b-cap-usage.html).

How does this happen? USCIS determines when to stop accepting applications based on a formula that subtracts from the number of H-1B petitions received an amount it forecasts it will deny. If they are too conservative, they will forecast a denial rate that is higher than reality and stop collecting applications too early. USCIS could open up the application process again, but has chosen not to despite the fact that it has such a system in place for H-2B visas. If you’re an employer who lost a key employee because the H-1B cap was reached, you should be angry. Let your member of Congress know.

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Immigration issues continue to pop up in this election season. Both Mitt Romney and President Obama were interviewed by Univision with immigration issues dominating the discussion. President Obama was pressed on why he did not bring forth an immigration reform proposal when the Democrats were in the majority in both houses of Congress. Romney was pressed on the numerous hard right immigration positions he took during the primaries. The President is doing much better with Latino voters and is leading in most polls by nearly 50 points, about the same amount as the President beat John McCain by in 2008.

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In firm news, I’m quoted this week in the New York Times in a story on the impact of DACA on employers and the need to be cautious about revealing information about a DACA application to your boss. The story can be found at http://www.nytimes.com/2012/09/26/us/immigrant-deportation-deferrals-put-employers- in-a-bind.html .

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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

The first employment based immigration preference category covers “priority workers.” These are workers whose skills and talents are important to the US – the “best and brightest.” Though the regulations do not explicitly require it, USCIS has traditionally expected applicants to demonstrate they will benefit the country prospectively. The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors). This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category.

Who is included in the EB-1 Category?

The EB-1 category covers three groups:

• Aliens of Extraordinary Ability
• Outstanding Professors and Researchers
• International Managers and ExecutivesOne of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.

  Who is considered an alien of extraordinary ability?

  This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the United States. This means that the alien may file a petition on their own behalf, rather than having an employer file for them.

  How is “extraordinary ability” defined?

Extraordinary ability as a concept in immigration law was introduced in 1990. USCIS regulations define “extraordinary ability” as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.

How can extraordinary ability be demonstrated?

There are two ways to demonstrate extraordinary ability. First, the alien can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award. The second and more common method is for the alien to show three of the following ten types of evidence:

• Receipt of lesser national or international prizes or awards for excellence in their field of endeavor
• Membership in associations in the field of endeavor that require outstanding achievements of their members
• Published material about the alien and his work in professional journals, trade publications, or the major media
• Participation, either in a group or alone, as a judge of others in the same or a similar field
• Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor
• Authorship of scholarly articles in the field, published in professional journals or the major media
• Display of the alien’s work at artistic exhibitions or showcases in more than one country
• Performance in a lead, starring, or critical role for organizations with a distinguished reputation
• Commanding a high salary compared to others in the field
• Commercial success in the performing arts, as shown by box office receipts and salesRealizing that these categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence.

  Note that in recent years, there has been a great deal of litigation over whether it is enough simply to meet three categories of evidence. In the Ninth Circuit case of Kazarian, the USCIS was successful in arguing that there are two steps to proving extraordinary ability. First, the applicant must present evidence to satisfy the categories noted above. And then a USCIS examiner must conduct a “final merits analysis” and review the evidence in totality to see if the applicant is truly extraordinary. Not surprisingly, the request for evidence and denial rates for EB-1 have increased substantially over the last few years.

  How tough is it to meet the standards of evidence?

  While there are, of course, examples where people with relatively weak credentials successfully applied for EB-1 green cards, more often USCIS denies cases for deserving applicants. In many cases, they will discount the evidence presented so that successful applicants will really need to present evidence in many more categories than just the minimum three.

A safe assumption to make is that USCIS will not take any assertions by the applicant at face value and every accomplishment cited should be backed up with evidence. Furthermore, USCIS will assume that publications are not prestigious, associations do not require outstanding accomplishments of their members, awards are not highly important in the field, etc. In short, it is not enough to present evidence in at least three categories, but also to document why each one of those forms of evidence independently suggest one has extraordinary ability in the field.

Also, support letters are often the most important form of evidence so particular attention should be paid to them. Get as many as possible – many lawyers recommend at least ten – and make sure that they represent both people who know your work directly as well as letters from people in the field who do not work with you and can be viewed as more independent.

When is the best time for someone to apply for EB-1 status?

That’s always a tough call to make. On the one hand, applying early can be important for someone like an athlete who has a limited career span and is always at risk of a career- ending injury. On the other hand, many applicants make the mistake of pursuing the EB-1 before they have really accomplished enough to meet the EB-1 standards. For example, a student will likely have a tougher time than one who has been out if the field for some time.

Does one need to have a job to apply for an EB-1?

Technically, the answer is no. EB-1s are self-petitioned and are not dependent on an employer. Nevertheless, an applicant should show that they are going to continue working in the field in the US and it helps enormously to have work or projects lined up in the US.

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

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

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1) QUESTION: If my fiancé’s green card is being sponsored by his employer, and is in the final stages of being processed, can I receive a green card along with him if we get married?

ANSWER: In order for a foreign national to be eligible to obtain a green card as a derivative beneficiary of their spouse, they must be married before the primary beneficiary (in this case the employee) becomes a Permanent Resident. So if the marriage takes place before the I-485 Application for Adjustment of Status is approved then the person would be eligible to receive a green card as a derivative beneficiary of their spouse, as long as they are otherwise eligible.

However, if the marriage takes place after the I-485 Application for Adjustment of Status is approved then the person would not be eligible to receive a green card as a derivative beneficiary of their spouse. In that case the Permanent Resident spouse would have to file a family based immigrant petition for the foreign national under the F-2A category. Under the F2A category it could take several years for a visa to become available for this petition.

It should be noted that the situation varies if the primary beneficiary is being sponsored by a family member instead of an employer, as some family base categories do not allow derivative beneficiaries and marrying could also change the preference category or even cause the petition to become revoked. An immigration lawyer should be consulted before marrying in such situations.

2) QUESTION: After receiving my green card through my employer, how long do I have to stay with my employer before I can look for a new job? Will my leaving affect my chances of getting citizenship?

ANSWER: There is no set amount of time that someone must stay with their employer after receiving their green card. You must have had the intention to work for your employer in the sponsored position. Your employer must have had the intention to employ you in the sponsored position. If you do not work for your employer at all, or only work for a short period of time, this could cause USCIS to question whether you actually intended to work for the employer. Therefore it is recommended that you work for the employer for at least a while. Some attorneys recommend that you work for the employer for at least 3 months, while some attorneys recommend that you work for the employer for at least 6 months. However, there is no set amount.

Normally this question will not come up until the employee applies for citizenship. USCIS can look to see if you worked for the employer in order to determine whether you committed fraud in your green card application. However, as long as you worked for the employer for some period and can give a reasonable explanation for leaving the position, the fact that you did not stay with the employer long should not be a bar to receiving citizenship.

You should also keep in mind that, in certain circumstances, the green card application is portable to a new employer. Therefore, when the application is portable, you can start working for the new employer as your new petitioner even before the green card application is approved. However, before you move to a new employer under the portability regulations, I would recommend that you consult with an immigration lawyer to ensure that your application is truly portable.

Record Number of Foreigners Were Deported in 2011, Officials Say

The New York Times reports that immigration enforcement authorities detained and deported a record number of illegal immigrants in 2011 and can expect similar results this year. According to the report, immigration agents deported 391,953 illegal immigrants during the 2011 fiscal year, including 188,000 convicted criminals. Citizens from Mexico, Guatemala, Honduras and El Salvador made up 93 percent of all people deported last year. With the 2012 fiscal year ending in October, just over 366,000 people have been deported as of August 31st, including more than 191,000 convicted criminals. Although Homeland Security officials have said they are focusing their efforts on criminals, the fast pace of deportations the past two years has left many Latino immigrant communities disillusioned. In addition to formal deportations last year, DHS agents expelled about 324,000 foreigners back to their countries without formal court proceedings. According to the report, most were illegal immigrants who agreed to leave voluntarily after they were detained, rather than be removed by the authorities.

http://www.nytimes.com/2012/09/08/us/us-deports-record-number-of-foreigners-in- 2011.html

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Judge Rules for Students in Immigrant-Tuition Suit

The Associated Press reports a federal judge ruled that American born children of undocumented Florida residents are entitled to in-state tuition rates at public colleges and universities. U.S. District Judge K. Michael Moore determined that charging students high out-of-state tuition rates simply because their parents are in the U.S. illegally violates the equal protection clause of the Constitution by forcing those students to unfairly pay three times as much as Florida residents. The ruling came in a lawsuit filed by the Southern Poverty Law Center on behalf of several Florida students who were denied in-state tuition because they could not prove their parents were in the country illegally. Children of illegal immigrants have won similar challenges in states such as New Jersey, California, Colorado, and Florida. Last month in New Jersey, a state appeals court ruled that an American born student whose parents could not prove legal status was wrongly denied financial aid and, in Colorado, the attorney general issued an opinion in 2007 stating legal state residents were eligible for in-state tuition even if their parents were residing in the country illegally. “A U.S. citizen should be treated like a U.S. citizen no matter who their parents are,” State Rep. Hazelle Rogers stated. The federal court’s new ruling could give thousands of students greater access to an education.

http://www.usnews.com/news/us/articles/2012/09/04/judge-rules-for-students-in- immigrant-tuition-suit

http://www.courthousenews.com/2012/09/10/50121.htm

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State of Texas v. Cristo Vive, et al.

Cristo Vive, a Christian Social Services company engaged in unlicensed immigration consulting, has agreed to a court order prohibiting the company from offering immigration services in exchange for money, advertising its services to clients, or assisting immigrants in any way with legal matters. The temporary injunction was ordered by the 53rd District Court of Texas until trial, September 9, 2012.

Tulsan Awaits U.S. Supreme Court Decision on Immigration

The Tulsa World reports that the U.S. Supreme Court will hear arguments in a case involving a Tulsa immigrant. Two years ago, the court ruled that the Sixth Amendment requires criminal defense attorneys to inform non-citizen clients of possible immigration consequences when accepting a plea agreement. The court was silent on whether it could be applied in criminal cases adjudicated before the decision and lower courts have been split on the issue. Among legal briefs in support of retroactivity is the case of Jorge ‘George’ Aguilar, a Tulsa immigrant who lived as a legal resident after arriving from El Salvador as a 10-year old with his mother. In December 2003, Aguilar, 20, and two friends were arrested for burglarizing three Baptist churches, taking mostly electronics. In 2004, Aguilar pleaded guilty to two felony second-degree burglary charges and received a deferred sentence, meaning if he stayed out of trouble for five years and paid off the court-ordered fines and restitution, the charge would be expunged. He met all the conditions and his criminal record was cleared.

During that time, Aguilar became a member of the First Baptist Church of Broken Arrow, which he once burglarized. He earned a GED, found full-time employment and became a volunteer helping immigrants. He also began studies to become a youth minister, with a special interest in helping troubled kids. However, despite having a clean state record, the U.S. Immigration and Customs Enforcement does not recognize deferred sentences and expungements. Aguilar’s guilty plea meant he could have his legal residency stripped and be deported and banished from the U.S. ICE sent a notice to Aguilar in 2009 for him to appear in immigration court for possible deportation. A prosecutor in an administrative court based in Dallas exercised discretion and terminated the case without prejudice in March 2010. However, a new prosecutor reversed that decision a month later. On February 14, 2011, an immigration judge ordered Aguilar be removed from the U.S. and he was held in custody until his deportation December 9th. Pastor Nick Garland and other church members have written letters to federal officials and lawmakers on Aguilar’s behalf. Aguilar’s motions to vacate the guilty plea have all been turned down. Immigration attorneys are uncertain how many cases would be affected by a Supreme Court decision in favor of retroactivity.

http://www.tulsaworld.com/news/article.aspx?subjectid=11&articleid=20120909_11_A1_C UTLIN884283

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The Montgomery Advertiser reports that state officials filed a motion asking for a rehearing on provisions of Alabama’s immigration law. Last month, a federal panel of judges from the court found provisions of the law unconstitutional, including one requiring schools to check the immigration status of students at time of enrollment. The panel of judges said the provision violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution; however, the state disagrees and is seeking a rehearing on the law. The school data provision requires students to provide documentation of their birth and if the child or parents do not provide such documentation, the student is counted unlawfully present. However, students would not be banned from public schools because of immigration status based on the U.S. Supreme Court ruling in the 1982 case, Plyer v. Doe. In the case of the Alabama law, the 11th Circuit panel ruled that the provision created a ‘calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state.’

Alabama Asks Federal Court for Rehearing on Immigration Law Ruling

http://www.montgomeryadvertiser.com/article/20120911/NEWS02/309100021/Alabama- asks-federal-court-rehearing-immigration-law-ruling

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Appeals Court Asked to Block Show-Me-Your-Papers Provision of Arizona Anti- Immigration Law

ACLU reports that a coalition of civil rights groups has appealed a federal court decision that would allow a controversial provision of Arizona’s anti-immigration law to go into effect. The provision, known as the “show-me-your-papers” provision, requires police to verify the citizenship or immigration status of people arrested, stopped or detained if there is a reasonable suspicion that they are in the country illegally. The appeal against the law was filed with the Ninth Circuit eight days after U.S. District Court Judge Susan Bolton denied a request to block the “show-me-your-papers” provision of the Arizona law. The coalition asked the Ninth Circuit to suspend the provision for the duration of the appeal. The coalition of civil rights groups involved includes the ACLU, the ACLU of Arizona, NILC, MALDEF, the National Day Laborer Organizing Network, the Asian Pacific American Legal Center, the Asian American Justice Center and the NAACP.

http://www.aclu.org/defending-targets-discrimination/appeals-court-asked-block-show-me- your-papers-provision-arizona

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American Immigration Council Applauds Ruling Allowing Immigration Judges to Consider Evidence of Hardship

The American Immigration Council reports that the U.S. Court of Appeals for the Third Circuit issued a ruling that will allow immigration judges to exercise good judgment in cases involving lawful permanent residents (LPRs) whose removal from the United States would cause extreme hardship to their families. The recipient of the recent court decision, Zaman Hanif, has resided in the U.S. for more than 25 years. The Department of Homeland Security initiated removal proceedings against him in 2009 after a criminal conviction that resulted in four months of incarceration. Hanif sought a waiver of inadmissibility on account of the hardship his removal would create for his wife, two elderly parents and U.S. citizen children. The decision by the Board of Immigration Appeals (BIA) that Hanif was ineligible to present evidence of hardship based on a 2010 decision in Matter of Koljenovic was reversed as the Third Circuit stated that it would not refer to the Board’s interpretation as it was at odds with the clear meaning of the INA statute. The case involved a 1996 amendment to the INA that prevents immigration judges from considering evidence of hardship in LPR removal cases. For many LPRs facing removal, the ability to obtain such hardship waivers is the only way to avoid separation from their families in the U.S. In its legal opinion, the Council argued that the BIA ignored the plain language of the statute and, in light of the recent decision, calls for the overturning of the decision in Matter of Koljenovic.

http://www.americanimmigrationcouncil.org/newsroom/release/american-immigration- council-applauds-ruling-allowing-immigration-judges-consider-e

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Pittsburgh Looking to Increase Immigrant Population

The Pittsburgh Post Gazette reports that businesses and nonprofit groups are increasing their efforts to restore Pittsburgh’s appeal as a place for immigrants. The U.S. Census Bureau’s American Community Survey for 2006 to 2010 estimated Pittsburgh’s foreign-born population to be about 7 percent of its total population. The percentage is much lower than that of other major American cities. Immigrant advocates such as Melanie Harrington, CEO of Vibrant Pittsburgh, and Victor Diaz, director of special projects for the Pittsburgh Metropolitan Area Hispanic Chamber of Commerce believe Pittsburgh should work to attract immigrants and first-generation Americans. According to American Community Service data, the city and county are already experiencing an increase in immigration from Africa, Asia, and Latin America. Pittsburgh isn’t widely known in the Middle East, but the G-20 summit in 2009 helped to raise the city’s profile, according to Haya Abdel-Latif, a Jordanian who lived in Saudi Arabia before coming to the U.S. for college. Many cities believe that immigration can help them bounce back from population loss and also help attract young professionals.

http://www.post-gazette.com/stories/local/neighborhoods-city/pittsburgh-looking-to- increase-immigrant-population-650538/

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Phys.org reports that, according to research at Stanford University, President Obama’s immigration policy, which allows some young illegal immigrants to remain in the country, may have the effect of lowering the crime rate. Like the 1986 Immigration Reform and Control Act (IRCA), the deferred action initiative offers undocumented youth opportunities in the legal workforce and, according to Stanford economics doctoral candidate Scott R. Baker, the initiative could lead to a nationwide drop in crime – as many as 50,000 fewer crimes per year. The IRCA was originally meant to illegalize the hiring of undocumented workers but, instead, led to the legalization of more than 2.5 million of the estimated 3.1 million illegal immigrants in the country at the time. Researcher Scott Baker compared IRCA applications with FBI crime statistics and found that more legalizations meant less crime. Legalizing 1 percent of the population in a county corresponded to a 2 percent decrease in crime per capita, which averaged around 200, 000 fewer crimes every year on a national level. However, since Deferred Action is more limited and tightly regulated than IRCA, the path to the formal employment through the initiative is less certain. Additionally, there is always the possibility that the offer could be withdrawn if the White House changes administrations, says Baker.

http://phys.org/news/2012-08-stanford-economist-immigration-reform-crime.html

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U Visas Hit a Ceiling

The New York Times reports that the Department of Homeland Security has already reached the annual 10,000 limit on special visas for undocumented immigrants who are victims of domestic violence and sexual assaults and who also assist in investigations or prosecutions. These visas, known as U visas, grant victims and their close relatives temporary legal status and work eligibility for at least four years. The program has been a valuable tool for encouraging immigrant victims to come forward and testify against their attackers. However, the federal government’s fiscal year doesn’t end until September 30 and many

Stanford Economist: Immigration Reform Initiative Could Reduce Crime victims’ advocates and law enforcement officials are worried that the suspension in issuing visas until October 1 will discourage some women from speaking out and put some victims who have pending visa applications in further jeopardy.

This problem is a direct consequence of a Congressional block over reauthorizing the Violence Against Women Act, the 1994 law that aims to combat domestic violence, sexual assault, and stalking. A strong bipartisan reauthorization bill approved by the Senate in May includes provisions to raise the yearly U visa cap from 10,000 to 15,000. However, House Republicans pushed through a regressive measure that omits the Senate’s U visa increase, along with new protections for gay, bisexual and transgender victims of domestic abuse. The House bill also calls for the elimination of the existing ability of U visa holders to apply for permanent residency after three years.

http://nyti.ms/O7IKGd

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USCIS Publishes Second Draft of New, Proposed Form I-9 for Review and Comment

E-Verify and I-9 News reports that USCIS is accepting feedback on the new proposed two- page I-9 form until September 21, 2012. The department has already received over 6,200 comments and suggestions on the initial draft, which was revealed March 27, 2012. The proposed changes to the I-9 form include more detailed field names, addition of new fields such as email address, telephone number, and formatting changes for numerical fields requiring a certain amount of digits. The new I-9 form is not yet effective and employers should continue to use the current I-9 form with a revision date of 08/07/09 until further notice.

http://everifyandi9news.com/2012/08/uscis-second-draft-of-new-proposed-form-i-9/

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Quick Start to Program Offering Immigrants a Reprieve

The New York Times reports that the first approvals for Deferred Action for Childhood Arrivals (DACA) applications were granted during the second week of September. More than 72,000 young immigrants have applied and, while the requests do not reach the high estimates of 250,000 officials reported, at the current rate, at least 200,000 young immigrants will have applied by the time of the presidential election. The surge of applicants has not been greater because of difficulties many young immigrants have encountered in gathering documents needed for the application and the $465 application fee. The program also posed a test for United States Immigration and Customs Services, which has not been known for their efficiency. However, the agency has been issuing receipts for applications within 48 hours after they were logged in, generally within three weeks after an application is received. Completed applications first reached immigration officers on Monday, September 10th. By that afternoon, the first few approvals were issued. Alejandro Mayorkas, director of USCIS, said that he expects the first work permits, which are approved in a separate but parallel process, to be issued in coming weeks. Administration officials have said the program will be paid for by fees, with no taxpayer money invested. California is leading in applications, followed by Texas, New York, New Jersey and Florida. Most applicants have origins in Mexico, and, surprisingly, South Korea. The first applicants to apply are starting to receive approvals of DACA status, though employment cards have still not been issued.

http://www.nytimes.com/2012/09/12/us/program-offering-immigrants-reprieve-is-off-to- quick-start.html

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US Consulate Suspends Visa Processing in Chennai

The Times of India reports that the US consulate in Chennai suspended visa processing September 19th, following the decision of more than 20 Muslim groups to hold more protest rallies over the controversial film ‘Innocence of Muslims.’ Security around the consulate was strengthened after about 2,000 protesters resorted to violence on September 13th. Chennai police chief J K Tripahty said they ready to face the demonstrations as police have deployed swift action group (SAG), rapid action force (RAG) and commando force around the consulate. Search lights have been installed on roads and the CCTV cameras, broken during the September 13th protest, have been replaced. Police arrested 18 people in connection with Thursday’s incident and barricaded the area around the consulate by blocking service roads.

While the US consulate in Chennai was closed, other US consulates in India and the US Embassy in New Delhi remained open for services September 19th. However, consulate officials requested that visa applicants check their official websites for further updates. The consulate also asked American citizens to enroll the Smart Traveller Enrollment Program (STEP) to make it easier for the embassy to contact them in case of an emergency. US citizens without internet access can enroll directly at the US embassy or the consulate at their destination.

http://articles.timesofindia.indiatimes.com/2012-09-18/chennai/33924923_1_consulate- muslim-munnetra-kazhagam-chennai

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Immigration Agents Sue to Stop Obama’s Non-Deportation Policy

The Washington Times reports that ten immigration agents sued the Obama administration to try to halt the administration’s new non-deportation policy. The lawsuit was filed in a federal court in Texas and the ten U.S. Immigration and Customs Enforcement (ICE) agents and deportation officers said that policy forces them to choose between enforcing the law and being reprimanded by superiors or listening to superiors and violating their own oaths of office and a1996 law that requires them to demand proof of legal status from those they suspect are not in the country legally. The Department of Homeland Security recently began taking applications from young adults who qualify for deferred action. Qualified applicants are those who are 30 years of age or younger, who came to the U.S. as children and who have kept a fairly clean criminal record. Those being granted deferred action will not be deported and will be allowed to obtain work permits in the U.S.

At a House Judiciary Committee hearing in July, Rep. Steve King (R-Iowa) warned of the possibility of a lawsuit and asked Homeland Security Secretary Janet Napolitano if she would rescind the order before it came to that. Napolitano said she would not and asserted that she was acting in accordance with Supreme Court rulings that have established wide latitude for discretion by the executive branch and federal law directs the administration to establish immigration enforcement priorities. However, the 22-page complaint filed by the agents says they’ve been told in broad terms to ignore a whole class of illegal immigrants. They said they have been instructed not to bother asking for proof, but to take an illegal immigrant’s word that he would qualify for the president’s policy.

http://www.washingtontimes.com/news/2012/aug/23/immigration-agents-sue-stop- obamas-non-deportation/

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ICE Chief of Staff Resigns Amid Misconduct Claims

The Associated Press reports that Suzanne Barr, chief of staff to Immigration and Customs Enforcement Director John Morton resigned amid allegations of inappropriate sexual behavior made by three ICE employees. Although Barr said in her resignation letter that the allegations were “unfounded,” she said she was stepping down anyway to end distractions within the agency. Barr went on leave after the New York Post reported on the lawsuit filed by James T. Hayes, Jr., ICE’s special agent in charge in New York. Additional employees came forward with their allegations only after Hayes filed a complaint. House Homeland Security Chairman Peter King (R-NY) said that Barr’s resignation raises the most serious questions about management practices and personal policies at the Department of Homeland Security. He said his committee will continue to review the case and personnel practices at DHS.

Hayes is asking for more than $4 million that would cover compensation he believes is owed for relocation expenses and financial losses associated with his transfer as well as the full salary and benefits he would have earned until he was eligible to retire. The Justice Department is seeking to dismiss Hayes’ lawsuit on the basis that he did not state a claim for retaliation. The Associated Press recently reported that the federal lawsuit is to be settled outside of court, with a federal magistrate judge mediating the case.

http://www.google.com/hostednews/ap/article/ALeqM5hypsLeQuLgFs- kxJvmrmNM1afY1g?docId=a5527de829784078b9e067b8e33174c2

http://www.google.com/hostednews/ap/article/ALeqM5gXibqHxKlTcQmgUUwIUDXH2deqlQ? docId=815d2ad7c26c464782440a85c833b660

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Republican Immigration Platform Backs “Self Deportation”

The New York Times reports that Republicans adopted a party platform on immigration that would require employers nationwide to verify workers’ legal status and deny federal financing to universities that allow illegal immigrant students to enroll at lower in-state tuition rates. The party’s platform comes as Mitt Romney moves closer to courting Hispanic voters before the general election. Romney has hinted that he would consider a DREAM Act for illegal immigrants who serve in the military. The party platform, however, offers no support for that proposal. Kris Kobach, Kansas Secretary of State, proposed the party platform calling for mandatory use by employers of a federal electronic system, E-Verify, to confirm the legal immigration status of new hires. “If you really want to create a job tomorrow, you can remove an illegal immigrant today,” Kobach said.

http://thecaucus.blogs.nytimes.com/2012/08/23/republican-immigration-platform-backs- self-deportation/

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Poll: Obama Shows Massive Lead Among Hispanic Voters

The Hill (DC) reports that President Obama has a massive lead among Hispanic voters, 63 percent to Mitt Romney’s 28 percent. In the 2008 election, Obama took 67 percent to Republican nominee Sen. John McCain’s 32. The Romney campaign told The Hill this week it needs to take 38 percent of the Hispanic vote to defeat President Obama. To date, Romney has lost a significant amount of favorability among Hispanics with 48 percent saying they have a negative view of him compared to the 31 percent positive. The president’s new directive has put Republicans on the defensive, with Romney’s campaign caught between Hispanic outreach and pleasing the large segments of the GOP base that view the policy as amnesty. However, the poll found that support for Obama among Hispanics is soft as only 61 percent said they were enthusiastic about the upcoming election—a 20 percent decrease from Hispanic enthusiasm in 2008. Even if Romney does not meet his 38 percent mark, President Obama’s challenge will be to maximize turnout among this key constituency.

http://thehill.com/blogs/ballot-box/polls/244769-poll-obama-maintains-massive-lead- among-hispanics

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Jeb Bush to GOP: Time to Change the Tone on Immigration

The Los Angeles Times reports that Republicans received a mild lashing from one of the party’s most revered figures, Jeb Bush, who urged the GOP to change its tone on immigration. Bush has previously stated his concerns about the party’s hard-line immigration stance. “You can’t ask people to join your cause and then send a signal that you’re really not wanted,” the former Florida governor said. However, despite the polls, Bush said he was convinced Romney could make strides by focusing on a message of economic growth and job creation.

http://www.latimes.com/news/politics/la-pn-jeb-bush-to-gop-time-to-change-the-tone-on- immigration-20120826,0,7638141.story

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Democratic Platform Addresses Immigration

The Associated Press reports that part of the Democratic platform, which was unveiled at the national convention, states that “Democrats are strongly committed to enacting comprehensive immigration reform.” Reform would include bringing “undocumented immigrants out of the shadows” and requiring illegal immigrants to “get right with the law,” learn English and pay taxes in order to get on a path toward citizenship. It also calls for a “visa system that will meet the country’s economic needs, keep families together while also enforcing the law.” The platform acknowledges that administrative fixes are not permanent and that only congress can provide permanent, comprehensive solutions.

http://www.boston.com/news/politics/2012/2012/09/04/democratic-platform-focuses- fixing-the-economy/gtENZQrFSSf6r1o8SaOVwL/story.html

*****

Obama: I Didn’t Promise to Complete Immigration Reform in My First Term

EFE reports that President Obama said in an exclusive interview with Agencia Efe, Spain’s international news agency, that he had not promised to complete his entire 2008 campaign agenda, including immigration reform, during his first term but rather had said he would begin working on it. While the president acknowledged that some agenda items such as comprehensive immigration reform have not been accomplished, he noted that, in 2008, he did not promise that everything would be completed by his first term—only that his administration would begin work on such things. The President blamed Republicans for the lack of progress on reform legislation in his first term and pledged he would try to bring up the issue in the first year of a second term.

http://latino.foxnews.com/latino/politics/2012/09/14/obama-didnt-promise-to-complete- immigration-reform-in-my-first-term/

*****

Fox News Latino reports that the all-Republican Kansas State Objections Board recently considered removing President Obama from the state’s November ballot over a reignited claim that he is not eligible to be president. A Manhattan, Kansas resident, Joe Montgomery, claims President Obama is not eligible to be president because Obama’s father was from Kenya and Montgomery questions whether Obama has a valid birth certificate. While the notion that President Obama was born anywhere other than in Hawaii has long been discredited and the White House released his long-form birth certificate last year, Montgomery argues that, to be eligible for presidency, both of Obama’s parents had to be U.S. citizens when he was born. Kansas Secretary of State Kris Kobach, who is also Romney’s campaign advisor on immigration policy, heads the all-Republican Kansas organization that is considering removing President Obama from the November ballot. “We have to take our responsibilities seriously, said Kobach. Although Kobach made the “birther” issue a part of his 2010 election campaign, he conceded that it would be difficult for Montgomery to prevail, particularly because Kansas has a high legal standard for removing a candidate from the ballot. Kip Wainscott, an attorney for the campaign sent the board a letter saying that Montgomery’s claims were “without merit.”

The New York Times reported on September 15th, that Kobach had backed down and the President will appear on the ballot.

http://latino.foxnews.com/latino/politics/2012/09/14/kansas-weighs-taking-obama-off- ballot-over-birther-accusations/

http://www.nytimes.com/2012/09/15/us/politics/kansas-election-officials-seek-copy-of- obamas-birth-certificate.html

*****

Greg Siskind’s Blog on ILW.com

• California Legislature Passes Anti-Detention Bill
• Anti-Immigrant Group’s New Strategy: Latinos Don’t Vote So Go Ahead and BashAway

Kansas Weighs Taking Obama off Ballot over ‘Birther’ Accusations

• Ann Romney to Hispanics: Get Over It!
• Martinez Left Out One Subject
• Romney Avoids Talking About Immigration
• An Unintended Benefit: DACA Could Reduce Crime Rate
• Democrats Embrace Pro-Immigration Message at Party Convention
• Introducing Benita Veliz
• Only 40,000 DACA Applications Received So Far
• October 2013 Visa Bulletin Update
• First DACA Cases Approved
• Economist: Unlimited High Skilled Immigration Only Way to US Decline
• Kobach Uses Birther Myth to Push to Remove Obama from Kansas Ballot
• Surprise! Congress Passes an Immigration Bill
• House to Vote on STEM Bill Next Week
• Gutierrez Offers Cautious Response to STEM News
• Romney: I’ll Fix the Immigration System!
• Schumer Introduces STEM Bill to Match House
• Romney: I’ll Fix Immigration (ctd.)
• STEM Bill Fails in House
• BREAKING: USCIS Systematically Undercounting H-1B Cap Usage
• Obama or Romney: Who Would Deport More People?
• Is Rising GOP Star Lying About Her Immigration History?
• NY Times: DACA Puts Some Employers in Tough SituationThe SSB I-9, E-Verify, & Employer Immigration Compliance Blog

• I-9 form with August 31, 2012 Expiration Date is Still Valid by Bruce Buchanan, Siskind Susser
• DOJ Settles Discrimination Claim against MicroLink Devices; by Bruce Buchanan, Siskind Susser
• Company and its Owner Plead Guilty to Cover-up of Unlawful Hiring by Bruce Buchanan, Siskind Susser
• Company’s Response to E-Verify Tentative Non-confirmation is Costly by Bruce Buchanan, Siskind Susser

The Visalaw Healthcare Immigration Blog
Karen Weinstock’s Visalaw Georgia Immigration Blog

• BIGOT FILES COMPLAINT AGAINST 1214 GEORGIA AGENCIES
• 25 GEORGIA ORGANIZATION WRITE TO END 287(G) AGREEMENTS
• GEORGIA WANTS THE ALIEN SMUGGLING PROVISIONS BACK IN FORCE
• GEORGIA IMMIGRATION REVIEW BOARD DISMISSES VIDALIA COMPLAINT10. State Department Visa Bulletin: October 2012

  October Visa Bulletin Summary:

Family 1st – World numbers, China and India advanced one week to 08 October 05; Mexico advanced one week to 15 June 93; the Philippines jumped one year, three months and three weeks to 01 April 96.

Family 2A – World numbers, China, India, and the Philippines advanced three weeks to 01

June 10; Mexico jumped one month to 15 May 10.

Family 2B – World numbers, China, and India are stalled at 15 September 04; Mexico moved forward five weeks and a half to 01 October 92; the Philippines advanced three weeks to 22 January 02.

Family 3rd – World numbers, China, and India moved forward one week to 22 May 02;

Mexico moved forward two weeks and a half to 08 February 93; the Philippines remains stalled at 22 July 92.

Family 4th – World numbers, China moved forward three weeks and a half to 15 February 01; India advanced one week to 15 March 01; Mexico moved forward one week to 22 June 96; the Philippines advanced one week to 08 February 89.

Employment 1st – still current in all categories.

Employment 2nd – World numbers, Mexico, and the Philippines jumped forward three years at 01 January 12; China regressed one month to 15 July 07; India regressed to 01 September 04.

Employment 3rd – World numbers, Mexico advanced three weeks to 22 October 06; the

Philippines stalled at 01 August 06; China moved almost six weeks to 08 February 06; India advanced one week to 15 October 02.

Employment 3rd Other Workers – World numbers, Mexico moved forward three weeks to 22

October 06; the Philippines stalled at 01 August 06; China stalled at 22 June 03; one week advance for India to 15 October 02.

Employment 4th – still current in all categories. Employment 5th – still current in all categories.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during October. 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 September 10th. 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.)

*NOTE: For October, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15MAY10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15MAY10 and earlier than 01JUN10. (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 Areas Except born

MEXICO PHILIPPINES

Those Listed

2nd 01JAN12

3rd 22OCT06

Other Workers 22OCT06
Certain
Religious U Workers

5th Targeted Employment Areas/ Regional Centers

5th Pilot Programs

CCCCC

UUUUU

*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-2013 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 October, immigrant numbers in the DV category are available to qualified
DV-2013 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

8,000

Except: Egypt 5,500 Ethiopia 5,500 Nigeria 5,500

ASIA

1,900

EUROPE

5,700

NORTH AMERICA (BAHAMAS)

2

OCEANIA

250

SOUTH AMERICA, and the CARIBBEAN

450

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-2013 program ends as of September 30, 2013. DV visas may not be issued to DV-2013 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2013 principals are only entitled to derivative DV status until September 30, 2013. DV visa availability through the very end of FY-2013 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 NOVEMBER

For November, immigrant numbers in the DV category are available to qualified DV-2013 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 13,900

Except: Egypt 6,600 Ethiopia 9,100 Nigeria 8,500

ASIA 2,350

EUROPE 7,000

NORTH AMERICA (BAHAMAS) 2

OCEANIA 400

SOUTH AMERICA, and the CARIBBEAN

500

D. SCHEDULED EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES

Employment Fourth Preference Certain Religious Workers (SR): Pursuant to Section 568(a)(1) of Public Law 111-83, the non-minister special immigrant program expires on September 30, 2012. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2012. Visas issued prior to this date will only be issued with a validity date of September 30, 2012, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight September 30, 2012.

Employment Fifth Preference Pilot Categories (I5 and R5): Section 548 of Public Law 111-83 extended this immigrant investor pilot program through September 30, 2012. The I5 and R5 visas may be issued until close of business on September 30, 2012, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2012.

The cut-off dates for the categories mentioned above have been listed as “Unavailable” for October. Congress is currently considering an extension of the SR, I5 and R5 visa categories, but there is no certainty when such legislative action may occur. If there is legislative action extending one or both of these categories for FY-2013, those cut-off dates would immediately become “Current” for October.

E. OBTAINING THE MONTHLY VISA BULLETIN

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

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:

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: September 10, 2012