Articles Posted in Immigrant Visas

Bad news for Dream Act supporters, On 9/21/10, the Senate failed to reach the 60 votes needed to pass a motion to proceed to consideration of the fiscal 2011 defense authorization bill (S. 3454). Senator Majority Leader Harry Reid (D-NV) had previously announced his intention to offer the DREAM Act as an amendment to the bill. After it was evident that the votes needed to proceed would fall short, Senator Reid switched his vote to “no” in order to preserve his right to bring the bill up again which would mostly likely be during the lame duck session of the 111th Congress.

Senate Republicans were joined by Arkansas Democrats Blanche Lincoln and Mark Pryor in voting down the measure by a vote of 56-43.

Here is what the President of the American Immigration Lawyers Association had to say:

The Department of State released the new visa bulletin for October 2010 on September 9, 2010.

For the month of October, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 14 days for Chinese nationals (from May 8, 2006 to May 22, 2006), and remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from October 22, 2003 to November 8, 2003 and from January 1, 2002 to January 15, 2002 for Chinese and Indian nationals respectively.

For the month of September, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for both Chinese nationals (from March 1, 2006 to May 8, 2006) and Indian nationals (from March 1, 2006 to May 8, 2006). In the EB-3 category, the cut-off dates moved forward from September 22, 2003 to October 22, 2003 for Chinese nationals while the cut-off dates stayed the same as they were in August for Indian nationals (January 1, 2002).

USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

The Department of Labor (DOL) issued new PERM FAQs on August 3, 2010. The issues addressed by DOL in this round of FAQs include expedite requests, how to document the use of an employee referral program, unsolicited documentation and what constitutes a “business day” for purposes of posting the Notice of Filing. Within the FAQs, DOL states the following:

* Expedite Requests – DOL clarifies that the Office of Foreign Labor Certification (OFLC), as a matter of long-standing policy, will not accept requests to expedite PERM applications;

* Employee Referral Programs (ERP) – DOL states that an employer can document its use of an ERP with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered. The employer must document the existence of the ERP, and that its employees were aware of the vacancy of the specific position for which certification is being sought. This can be achieved through posting on the employer’s website. However, the physical Notice of Filing shall not be sufficient for this purpose;

A great update from AILA to our anxious EB3 applicants and blog readers. Many I-140 denials came out of the Service Centers in the past few months. These denials resulted when applicants failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010.

Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor’s degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.

However, this new form does require the petitioner to distinguish between a professional with a Bachelor’s degree and a skilled worker. The definition of professional is set forth in the regulations at 8CFR 204.5(l)(2), which states:

Aliens who married or had children before the date of obtaining permanent residency can possibly confer “following-to-join” benefits to their family members. Due to this process, spouses and children will be able to receive green cards quickly. “Following-to join” is not family based immigration, but is similar to a child/spouse receiving derivative benefits based on a primary LPR’s immigration petition.

Here are the following requirements to be met in order for a spouse or child to qualify under “following-to-join”:

1. The LPR must have adjusted status or obtained an immigrant visa through a preference category (family or employment based) or diversity lottery. A LPR’s visa number must also be current in order for a family member to receive “following-to-join”.

The U.S. Department of State released the new visa bulletin for July 2010 on June 10, 2010.

For the month of July, the EB-1 category remained current for both Chinese and Indian nationals. In the EB-2 category, cut-off dates stayed the same for Chinese nationals (November 22, 2005), but moved forward eight months for Indian nationals from February 1, 2005 to October 1, 2005. In the EB-3 category, dates moved forward from June 22, 2003 to August 15, 2003 and from October 22, 2001 to November 22, 2001 for Chinese and Indian nationals respectively
For the month of June, the EB-1 category was current. In the EB-2 category, dates moved forward for mainland Chinese nationals from September 22, 2005 to November 22, 2005 and remain unchanged for Indian nationals (February 1, 2005). In the EB-3 category, dates moved forward for both mainland Chinese nationals from April 22, 2003 to June 22, 2003 and Indian nationals from October 1, 2001 to October 22, 2001.

This is a summary from AILA. The following immigration-related bills were introduced into the House of Representatives and the Senate in March and April:

E-Verify Loan Origination Act of 2010 (H.R. 4744)

Introduced by Rep. Marchant (R-TX) on 3/3/10

The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2010 diversity lottery. The diversity lottery was conducted under the terms of section 203(c) of the Immigration and Nationality Act and makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.

Winners should start finding out very soon. Notifications to the randomly-selected diversity visa or “green card lottery” winners are being sent between May and July 2010.

How does it all work?

A United States Permanent Resident Card, known informally as a green card (due to the color of some earlier variants), is an identification card attesting to the permanent resident status of an alien in the United States of America. Green card also refers to an immigration process of becoming a permanent resident.

The green card serves as proof that its holder, a Lawful Permanent Resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the USA. The holder must maintain permanent resident status, and can be removed from the United States if certain conditions of this status are not met.

The DHS Office of Immigration Statistics issued its Annual Flow Report on U.S. Legal Permanent Residents (LPRs) for FY 2009. In 2009, a total of 1,130,818 persons became LPRs of the U.S and obtained Green Cards. The majority of new LPRs (59 percent) already lived in the United States when they were granted lawful permanent residence. Nearly two-thirds were granted permanent resident status based on a family relationship with a U.S. citizen or legal permanent resident of the United States. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent).