Visa Lawyer Blog

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February 2009 Visa Bulletin shows about six months of forward movement in EB2 for India and China. There is a bit of forward movement in some of the EB3 chargeability areas.In the EB2 section China’s moved forward by almost the same amount. The cutoff date for India moved to January 1, 2004. China reflects a cutoff date of January 1, 2005.

In EB3, The cutoff date for countries under the “All Chargeability Areas Except Those Listed,” as well as for the Philippines, is stagnant, at May 1, 2005. India also remained unchanged, at October 15, 2001. The cutoff date for Mexico advanced by almost five months, to April 1, 2003. China also progressed to October 1, 2002.

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U.S. Citizenship and Immigration Services (USCIS) has issued a new edition of Form I-9, Employment Eligibility Verification. The new form will take effect on February 2, 2009 and should not be used before that date. Until February 2, employers should continue to use the June 5, 2007 edition of the form. Both editions of the form are available at http://www.uscis.gov/i-9.

Revised Document List

The I-9 form was changed to reflect new employment eligibility verification requirements set forth in a recent regulation that will also take effect on February 2. The regulation revises the list of documents that employers may accept to establish a worker’s identity and employment authorization, known as List A documents. The following documents have been added to List A on the new edition of Form I-9:

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President Obama began his first full day in office by reading the note left by former President Bush. We hope that new President will take a different path in his presidency. We know the economy is important, the war must be addressed, but Immigration reform must be a priority. Can Obama push for Immigration reform?
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Even though the U.S. president is considered to be one of the most powerful leaders of the world, no U.S. president can legislate or pass a law (except in emergency circumstances as an interim measure). Enacting law is the task of the legislature, or the U.S. Congress. The president can make his viewpoint known and members of his party in the U.S. Senate or the U.S. House of Representatives may support his position, introducing bills that are often hotly debated. Once the the bill is passed by both the Senate and the House, the president then can sign the bill into law. What Obama can do, is make sure that Immigration reform will remain a key priority until such reform actually is passed. Good Luck President!!!

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A national poll suggests that President-elect Barack Obama is more popular than ever despite recent speed bumps on the road to hi s inauguration. Eighty-four percent of those surveyed say they approve of how Obama is handling the presidential transition.

There have been no specific pronouncements of President-Elect Obama’s immigration law and policy position in any major speech. One can try to glean his thought process and his bent of mind from his voting record on immigration matters. A brief summary of the immigration policy and the track record of President-Elect Obama might be encapsulated as follows.

He voted for Comprehensive Immigration Reform (CIR) in July 2007, which attempted to eliminate the labor certification system and provide relief to undocumented workers, who could get in line to become U.S. immigrants, by creating a new Z class of visas. This was not an amnesty or blanket forgiveness. It was a slow process, requiring payment of hefty fines and get behind others waiting for years to obtain permanent U.S. immigration benefits.

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Senate Bill 9’s stated purpose is to strengthen the U.S. economy, provide for additional border protection and security, add additional employment enforcement and reform and make clear existing avenues for legal immigration. It simply states that legislation should be enacted to achieve these purposes. This bill does not set forth the details as to how these tasks will be accomplished. The bill does acknowledge the heritage of the United States as a nation of immigrants.

Senate Bill 9 was placed on the Senate’s calendar on January 7, 2009 and will be referred to a Senate Committee for review. This bill simply seems to be an attempt to set a pace and outline basic goals for upcoming immigration legislation. It appears to support the ongoing enforcement efforts, but is not only an enforcement-only approach. We will keep you posted on this and other up coming bills.

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The January 2009 Visa Bulletin has few changes over the December 2008 Visa Bulletin in the employment-based (EB) categories. There is slight forward movement in EB2 India and China. The EB3 category had a more significant change for China, and a minor change for India. The EB categories that were current in December 2008 remain current for January 2009.

For EB2, this category remains current for all countries, with the exception of India and China. The cutoff date for India moved forward by one month, and is now July 1, 2003. China moved forward by slightly more than a month, to July 8, 2004.

For EB3, The cutoff date for the “worldwide” category, as well as the Philippines, did not change, but remains at May 1, 2005. The cutoff date for Mexico advanced slightly more than two months, to November 15, 2002. China saw more significant progress, and, for the month of January 2009, has a cutoff date of June 1, 2002. India jumped forward to an October 15, 2001 cutoff date. Under EB3, this category moved forward to March 15, 2003 for all countries. As you can see the demand for visas exceeds the supply, and the visa crisis continues.

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The government is delaying a requirement that companies that receive new federal contracts check the immigration status of their employees using the Homeland Security Department’s E-verify system.

Facing a lawsuit by five industry associations, the government is delaying implementation of the rule until Feb. 20, said Lawrence Lorber, attorney for the trade groups.

The rule was supposed to take effect Jan. 15, but the industry groups, including the U.S. Chamber of Commerce, sued to block it from taking effect.

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I have tried to cover most of the key issues that a couple will need in order to succeed in filing the marriage based Green Card. But with a topic a involved and ever changing as this one, there are always questions that couples still like to ask. We have compiled a list of the most common questions that people ask us when attempting to file the Marriage based Green Application in the United States. Hopefully the following Questions and Answers will make your journey through this process a little less confusing.

1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen, Could they apply for the Green Card in the United States?
Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.

2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?
Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.

3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?
Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.

4. What if there is a mistake in your name or date of birth on the Green Card?
Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:
National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee’s Summit, MO 64063
5. How do you know what taxes to file now that you are a Green Card holder?
Answer: The Internal Revenue Service has several publications you can download or obtain from a local IRS office. www.irs.gov
” Publication 519…..US Tax Guide for Aliens
” Publication 514…..Foreign Tax Credit for Individuals
” Publication 501…..Exemptions, Standard Deduction, and Filing Information
” Publication 54…….Tax Guide for US Citizens and Resident Aliens Abroad
6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?
Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.

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Last week, the Attorney General overruled the Board’s decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don’t have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don’t have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer’s actions were “egregious,” and if the agency believes the immigrant has a valid claim to avoid deportation.

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As we anticipated, on January 8, 2009, USCIS updated its H-2B visa count page to announce that the cap has been reached for FY 2009. Thousands of employers in need of seasonal workers will once again need to search for alternatives.

The word “Cap” used in this posting refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.

The H-2B visa is designated for temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.

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