Articles Posted in Immigrant Visas

The Congressional Research Service (CRS) issued report on legislative developments in visa policy over the past 20 years and analysis of statistical trends in visa issuances and grounds for exclusion.

The conventional wisdom is that the terrorist attacks on September 11, 2001, prompted a substantive change in U.S. immigration policy on visa issuances and the grounds for excluding foreign nationals from the United States. A series of laws enacted in the 1990s, however, may have done as much or more to set current U.S. visa policy and the legal grounds for exclusion.

Foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted. Those admitted on a permanent basis are known as immigrants or legal permanent residents (LPRs), while those admitted on a temporary basis are known as nonimmigrants (such as tourists, foreign students, diplomats,temporary agricultural workers, and exchange visitors). They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission.

The Department of State just released the new visa bulletin for April 2010 on March 12, 2010.

EB-1 category is current for the month of April 2010. For mainland Chinese nationals, the cut-off date progressed from July 8, 2005 to August 22, 2005 in the EB-2 category. For Indian nationals, the cut-off date in the EB-2 category remains unchanged from March (February 1, 2005). In the EB-3 category, dates progressed for mainland Chinese nationals from December 15, 2002 to February 1, 2003 and for Indian nationals from July 1, 2001 to September 8, 2001.

In the month of March, the EB-1 category remained current from February. In the EB-2 category, cutoff dates for Chinese and Indian nationals both moved forward. For mainland Chinese nationals, dates progressed 47 days from May 22, 2005 to July 8, 2005. For Indian nationals, dates progressed 10 days from January 22, 2005 to February 1, 2005. In the EB-3 category, dates progressed for mainland Chinese nationals from September 22, 2002 to December 15, 2002 and for Indian nationals from June 22, 2001 to July 1, 2001.

Consular processing has undergone rapid and systemic changes during the past five years, and the rate and scope of change does not appear to be slowing. Enhanced security checks and inter-agency data sharing—among a massive wave of other changes—makes consular processing a daunting task that ensnare many unsuspecting visa applicants in problems and delays.

While many of the security measures were expected after 9/11, the effects were devastating to many U.S. visa applicants, who routinely encountered completely unpredictable surprises that caused unexpected and lengthy delays in visa issuance. These initial difficulties, delays and the resulting uncertainty for visa applicants and employers adversely impacted critical U.S. economic sectors including trade, tourism, scientific research, academia, and entertainment and business generally.

Newsweek recently published a story about an applicant’s experience with coming to America and the frustrations with this process.

What a great initiative introduced recently. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the Chairman and Ranking Member of the Senate Foreign Relations Committee, today introduced legislation to drive job creation and increase America’s global competiveness by helping immigrant entrepreneurs secure visas to the United States.

The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

The Department of State has released the new visa bulletin for February 2010 on January 8, 2010.

USCIS has reported last month that the EB-1 category was still current for all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

This month in the EB-2 category, cutoff dates for mainland Chinese nationals moved forward 21 days from May 1, 2005 to May 22, 2005; for Indian nationals, the cutoff date remained unchanged (January 22, 2005). In the EB-3 category, cutoff dates for mainland Chinese nationals moved forward from August 1, 2002 to September 22, 2002. For Indian nationals applying in the EB-3 category, cutoff dates remained unchanged from last month (June 22, 2001). Once again, the EB-1 category is still current.

The United States Department of Labor (DOL) has announced on January 14, 2010 that a new online prevailing wage system for PERM and H-1B will be launched on January 21, 2010. This is a big change in DOL’s practice regarding the prevailing wage determination system. For the past decade, prevailing wage determination for PERM and H-1B has been performed by State Workforce Agency. Employers who request a determination for a prevailing wage need to file an application with the state wage agent when a position is offered. Under the PERM system, a prevailing wage determination must be received prior to filing the PERM labor certification, the first step in an employment sponsored immigration petition.

DOL began this new centralized system on January 1st, but it has only been available through paper filing for the first couple of weeks. The new online prevailing wage system will be incorporated into the existing iCert system that DOL currently uses to handle Labor Condition Applications for H-1B petitions.

The newly updated iCert system will have several upgraded features. Once logging into iCert, a user will immediately be able to see case activity and the status and decision passed on the last ten applications submitted. Now, users will be able to electronically file and manage Form 9141 in a similar fashion to LCA Form 9035. If a user does not finish an application in one sitting, he/she can save the application and return to it later. Users can also withdraw submitted applications or delete unfinished ones. In addition, a user can reuse information from an old application for a new one. Via the upgraded system, printable forms and other instructions are now directly accessible from the prevailing wage application. On applications that have received decisions, users can also electronically request a Redetermination Review. Finally, the new system will accord much more control over sub-accounts, allowing users to block or grant access to the prevailing wage feature.

According to CNN, America could be facing a nursing shortage that will worsen exponentially as the population grows older. The problem: Baby boomers are getting older and will require more care than ever, taxing an already strained nursing system.

Barry Pactor, international director of global health care for consulting company HCL International, agrees that more nurses should be trained within the U.S. system. But as a short term solution for this “huge shortage,” he said the U.S. government should loosen immigration restrictions on foreign health care workers.

“I don’t see this as foreign nurses taking American jobs, because these are vacancies that already exist and cannot be [filled] by nurses currently in training,” he said. “We’d be filling in the gaps until the training can catch up with the demand.”

The Department of State has just released the new visa bulletin for January 2010 on December 10, 2009.

Last month, the EB-2 category for both mainland Chinese and Indian nationals remained unchanged from the November visa bulletin. In addition, the EB-1 category stayed current for worldwide applicants. Cut-off dates in the EB-3 category moved forward nine days from April 22, 2001 to May 1, 2001 for Indian nationals and did not change for mainland Chinese nationals.

Based on the January 2010 visa bulletin, USCIS reports that the EB-1 category is still current in all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

So we thought the new ntroduction of ICERT was bad, listen to this upcoming change. In accordance with its PERM labor certification regulations, the Department of Labor (DOL) has provided notice that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) will receive and process prevailing wage determination (PWD) requests for use in the H-1B (specialty occupations), H-1B1 (Chile/Singapore nationals), H-1C (registered nurses), H-2B (temporary and seasonal workers), E-3 (Australian nationals), and permanent labor certification programs starting January 1, 2010.

Under the new centralized process, PWD requests will be filed using Form ETA-9141 and submitted by mail or courier to the NPWHC in Washington, D.C. State Workforce Agencies will continue to process any PWD requests (as well as subsequent prevailing wage challenges) received in their offices through December 31, 2009.

Now for those of you familiar with the H2B process, form 9141 is already being used to obtain the PWD. My experience with H2B processing since the new change is nt positive. Sometimes we have to wait for 30 days to get the PWD. Imagine same story with future H1B cases, nightmare!!! The federal prevailing wage process is likely to result in delayed issuance of wage determinations. Most State Workforce Agencies (SWAs) currently accept and issue PWD requests electronically within 7 business days.

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.