Articles Posted in Immigrant Visas

USCIS recently released an excellent FAQ about the visa wait times, and the reasons why it takes so long to immigrate under the preference system. I still think that with time, things will get even worse. In order to keep families from being apart for years, Immigration reform must address the visa backlog as well.

A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available.

The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

The HIV ban removal will be remembered as a historic decision, through this final rule, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), amended its regulations to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of communicable disease of public health significance and remove references to “HIV” from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

Immigrants for Whom the Regulation Applies

The provisions in 42 CFR part 34 apply to the medical examination of :
(1) aliens outside the United States who are applying for a visa at an embassy or consulate of the United States;
(2) aliens arriving in the United States; and
(3) aliens required by the U.S. Department of Homeland Security (DHS) to have a medical examination in connection with determination of their admissibility into the United States; and
(4) aliens who apply for adjustment of their immigration status to that of lawful permanent resident.

An Immigrant seeking permanent residence, whether through an immigrant visa or asylee status, or through an adjustment of status must undergo a medical examination to determine whether the alien is inadmissible on medical grounds. Aliens seeking admission as refugees also undergo medical examinations overseas. Overseas examinations are conducted by panel physicians designated by the Department of State.

Applicants for adjustment of status to lawful permanent resident are required to have a medical examination conducted by a civil surgeon designated by U.S. Citizenship and Immigration Services within DHS. Prior to this rule HIV infected applicants were barred from Adjusting Status unless a hardship waiver was filed. Only applicants with a qualifying US citizen relative could file for this waiver. Many same sex applicants without a qualifying relative, could not adjust status under the previous legislation. This change will bring a historic relief to thousands of applicants infected with HIV, that were not eligible for any waivers to adjust.

If you are an HIV intending immigrant, please consult an experienced immigration attorney about your options.

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A Blog reader called me the other day and wanted to know when his priority date will become current. His I-485 adjustment was filed in August 2007 when visas opened up for 30 days, and since that time retrogressed. The applicant is from India and like many others in his shoes is eager for answers. So how do visa numbers become available?

In order to approve an application for adjustment of status (I-485), there must be a visa number available in the particular category. This, in turn, depends upon the country of chargeability and the priority date of the case. Once the U.S. Citizenship and Immigration Services (USCIS) has reviewed a particular I-485 application, a request is submitted to the DOS for a visa authorization. If the USCIS makes the request for a visa number to the DOS when the priority date of a particular case is current, and an immigrant visa number is available, the authorization is transmitted and the USCIS can approve the I-485 application. This is all tracked through the DOS Immigrant Visa Allocation Management System (IVAMS).

If an immigrant visa number for a particular individual is requested from the DOS by the USCIS, but none is available, the request is moved to the “pending” file with the DOS. Data from this pending file is used by the DOS to calculate the appropriate cutoff dates for the backlogged categories in the Visa Bulletin each month.

The U.S. State Department has officially released information about this year’s DV-2011 green card lottery, which begins on October 2, 2009. Don’t wait too long and sign on the registration process by reading through this year’s instructions. For those of you who were curious, the DV-2011 list of ineligible countries remains the same as last year:

* Brazil

* Canada

The State Department has advised AILA liaison that due to the large number of approvals issued in the past few weeks, employment-based visa numbers are no longer available for this fiscal year that concludes on September 30, 2009. This affects all categories of employment based immigrant visas. Numbers will become available again on October 1, 2009, as stated in the October 2009 Department of State Visa (DOS) Bulletin.

USCIS will continue to accept I-485 applications in categories showing visa availability based on the September Visa Bulletin, USCIS will not able to approve pending I-485 applications unless a visa number was previously captured. Where a USCIS officer adjudicated or pre-adjudicated a case and it was in the DOS “pending” queue and DOS has sent the electronic notification allocating a number to the Service Center, USCIS should issue the approval.

For those consular processing, because visa numbers for scheduled cases have already been allocated as part of the scheduling process, scheduled immigrant visa appointments at consulates for September will continue and immigrant visas may be issued.

According to a recent Newsweek article, Immigrants irrespective of their legal status are actually good for the job market, and boost the economy.

Lou Dobbs, take note: immigrants are good for our economy. The most skilled create jobs in technology and engineering, says Duke professor Vivek Wadhwa, who estimates that in 2005 immigrant-founded engineering and tech companies employed 450,000 people and generated $52 billion in sales. But even the least skilled more than repay their costs in schools and health care. Two highly respected Australian economists, Maureen Rimmer and Peter Dixon, studied the issue for the libertarian Cato Institute. “The net impact on U.S. households from tighter border enforcement is unambiguously negative,” they found, because even low-skilled immigrants expand the economic pie and create jobs farther up the ladder. Cato’s Dan Griswold says the study shows a $250 billion difference between the most and least restrictive immigration policies.

Read more here

USCIS has reminded all applicants for Adjustment of Status, Asylum, Legalization and Temporary Protected Status to obtain an Advance Parole (AP) document before traveling abroad. AP allows an applicant to re-enter the U.S. after traveling abroad.

In order to obtain Advance Parole, individuals must file Form I-131, Application for Travel Document to USCIS. The USCIS cautions individuals planning on traveling abroad to file Form I-131 well in advance of their travel plans (approximately 90 days before) in order to prevent possible conflicts.

We suggest all applicants of I-131 to file it in time to get the AP approval before leaving the U.S., otherwise it could have dire consequences and may result in an individual not being able to re-enter. Therefore, individuals that have a pending I-485 are encouraged to apply for Advance Parole before traveling abroad for easier re-entry if the circumstances of their current status changes.

The USCIS California Service Center is in the process of identifying all pending Adjustment of Status (AOS) applications in the EB-5 category based on the pilot program, and all non-Minister Religious Worker I-485s. All applicants with pending AOS application and for a non-minister Religious Worker in the EB-5 category can bring this to the notice of California Service Center.

Please let us know if you have such application pending before CSC.

U.S. Department of State’s visa bulletin brought some relief for some EB-2 applicants. The cutoff date for India and China moved forward to October 1, 2003 which had recently retrogressed to January 1, 2000. No explanation was provided for the change to October 1, 2003.

Summary of August 2009’ visa bulletin:

EB-1: This category is current for all countries of chargeability.