Archive for 2012


Nonimmigrant Visa Interview Waiver Program Expands in Mexico

August 28th, 2012 — 3:54pm

In July, US embassies in Mexico expanded the Department of States program to waive the nonimmigrant visa interview requirement to allow persons to obtain a new visa without scheduling a consular interview if they are applying for same visa within 48 months of their prior visa’s expiration date.  Previously, the visa interview waiver was only available to persons whose valid visas had expired within 12 months of the date of reapplication. The visa interview waiver program was initiated in January on an embassy-by-embassy basis to facilitate international travel to the U.S. by frequent business travelers and tourists. Currently, the program is in effect in only a limited number of countries.

Comment » | Department of State

Why Do Visa Numbers Surge Forward and Then Retrogress? Predicting Visa Availability for Backlogged Categories?

August 28th, 2012 — 3:52pm

Predicting when a priority date will become current and when the wait on the long immigrant visa queue will finally be over can often be pure guess work. With visas suddenly unavailable or unexpectedly within reach, preference-visa applicants and their attorneys have learned to accept this phenomenon as just another part of the immigration system. In a recent interview with the head of the Visa Control and Reporting Division at the State Department’s Visa Office – the office charged with establishing the monthly priority dates for the Visa Bulletin – Charles Oppenheim sheds some light on the process and provides his predictions for the months to come.

In October 2012, when new visas are allocated for fiscal year 2013, the employment-based second category (EB-2) worldwide will become current but, Mr. Oppenheim warns, the EB-2 category may retrogress or become unavailable for the rest of the year if USCIS adjudicates a significant number of cases in the summer. EB-2 cut-off dates for China (Mainland born) and India, currently “unavailable,” will only move to August or September 2007 and are not likely to move forward for at least six months due to pent-up demand.  Many of these individuals were just two years away from obtaining their green cards in April 2012 when the priority date was May 1, 2010. Now, these foreign nationals can expect at least a five-year wait. Why did this happen?  Why do priority dates move so far ahead and then retrogress so drastically?

Apparently, USCIS had approved many I-140 employment-based immigrant visa petitions but had not received a corresponding number of I-485 adjustment of status applications to adjudicate and thus urged DOS to move these priority dates forward.  Moreover, USCIS expected that adjudication of EB-1 cases would be at the same rate as last fiscal year, and not more. All of these factors led to the forward movement of the EB-2 priority date. The dates then severely retrogressed when demand caught up with visa availability. Another factor for seesawing EB-2 priority dates was the increase in EB-5 investor immigrant visa cases. Unused EB-5 visas trickle down into the EB-1 category, and unused EB-1 visas fall into EB-2. This year, there was less of the normal trickle-down between categories.

Another issue that clouds prediction of visa demand and visa availability, as explained by Mr. Oppenheim, is that neither USCIS nor DOS maintains statistics on upgrades from the EB-3 category to the EB-2 preference category. This can occur, for example, when an applicant applies for an EB-3 visa petition but then advances in his or her career or changes jobs and becomes eligible for an EB-2 visa or marries an EB-2 applicant. In these instances, the individual then has two visa numbers allocated to him. The unused or duplicate visa number (EB-3) is only cancelled when the visa applicant uses the EB-2 visa number during green card issuance. According to Mr. Oppenheim, there are between 10,000 and 15,000 duplicate visas numbers as a result of “upgrades” each fiscal year – a wide variance.  For 2013, that number is already at 17,000, which underscores the difficulty in predicting upgrades and thus visa availability.

Retrogressions are not good for anyone and neither agency likes them.  For USCIS, it means it has to adjudicate more work authorization and travel documents without a fee, and for DOS, it means lack of predictability. For individuals, it means further uncertainty and futures delayed.

Comment » | Department of State, I-485, Lawful permanent resident

Immigration Laws: Federal vs. State

August 13th, 2012 — 10:37am

With the upcoming 2012 presidential election, voters are honing in on several key issues. Even a brief glance across the headlines of America’s newspapers shows that immigration is without a doubt one of the main topics. Immigration to the U.S. has been a consistently widespread trend since around 1820, and the intense debates regarding the issue are now coming to a pinnacle with the coming election.

One of the central conflicts plaguing the nation’s mutable immigration policy is the clash between federal and local governments over what kind of action to take. A program known as Secure Communities was introduced by the U.S. Immigration and Customs Enforcement agency (or ICE) in 2008. The program called for the arrest of all crime-causing illegal immigrants, regardless of the crime’s scope. This detainer extends the person’s holding time in jail by up to 48 hours, allowing custody to be transferred to ICE where they can initiate the deportation process.

Federal proponents of the bill, like ICE director John Morton and Secretary of Homeland Security Janet Napolitano, are now seeing that the major flaw of Secure Communities lies in its dependence on the cooperation from state and local authorities. This has been a particular source of trouble in Cook County, Illinois. Chicago Mayor Rahm Emmanuel informed the media in a press conference last month that he does not wish for the city’s police force to follow the Secure Communities guidelines, a sentiment echoed by many of the county’s officials.

Especially in the wake of Arizona’s notorious blitz on illegal immigrants two years ago in the form of Senate Bill 1070, local governments all over the country are retaliating against the stringent new measures. In addition to Cook County’s move, which has pervaded the news since Emmanuel’s July 9th announcement, places like San Francisco, Santa Clara County, Washington D.C., and Taos, New Mexico have refused to accept federal measures, even establishing decrees against jails allowing detainers for minor crimes in some cases.

Inevitably, White House officials have responded in kind with vows to try and make dissenting governments comply with Secure Communities. Admittedly, their accomplishments have not been small so far. The Obama administration has already racked up over 1.2 million deportations, 200,000 of them under the provisions of the 2008 act and boosted the deportation rate of criminal illegals by almost 90% in three years. The act now encompasses 3,000 localities and is expected to achieve national compliance next year.

Still, resistance continues to grow as well. California – a state that contends more than any other with immigration problems – approved a senatorial bill prohibiting detainers statewide, prompting Supreme Court debates over the legality of such unilateral policy decisions. As the most heavily-populated state in the country and certainly one of the bluest, California’s opposition to the federal mandate is sure, as TIME writer Adam Sorensen says, to put them “on a collision course with the Obama Administration.” <http://swampland.time.com/2012/07/16/obamas-next-immigration-battle-local-federal-authorities-on-collision-course-over-detention-requests/?iid=sl-main-mostpop1>

Luckily, these rigorous measures by the federal government will not directly affect legal maneuvers, like business immigration, which allow desirable workers from foreign countries to come into the United States and be allowed to work in various fields on temporary or permanent bases. At the same time, though, the Obama administration must ask itself how acts like Secure Communities will affect the U.S.’s international relations; after all, it may seem a tad unwelcoming for a country that was largely built by immigrants to take such a tough stance on the practice.

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Comment » | Immigration and Customs Enforcement, Immigration reform

Relief for DREAMers

July 16th, 2012 — 11:08am
On June 15, 2012, President Obama announced that certain undocumented individuals who were brought to the U.S. as young children and who meet several eligibility criteria may receive “deferred action” and work authorization for a period of two years.  Deferred action means that the government will not seek to remove these individuals. 

In order to be considered for deferred action, the individual:

  • Must have been under the age of 31 and present in the U.S. on June 15, 2012;
  • Must have been under the age of 16 when brought to this country;
  • Must have continuously resided in the U.S, for at least five years before June 15, 2012;
  • Must be currently in school or have graduated from high school (or have received a GED), or have been honorably discharged from the U.S. Armed Forces;
  • Must have not been convicted of a felony, a “significant misdemeanor,” or multiple misdemeanors, or otherwise pose a threat to national security or public safety;
  • Must be at least 15 years of age at the time of application;
  • Must complete a background check.

Applications are not yet being accepted by the U.S. Department of Homeland Security, but  guidance on the process is expected no later than August 15, 2012.

Comment » | Department of Homeland Security, Immigration reform

Further Guidance on Failure to Register for NSEERS

June 22nd, 2012 — 10:20am

Although DHS finally ended the NSEERS registration program last year, it recently issued guidance on the limited circumstances under which negative immigration consequences, such as a denial of a benefit, finding of inadmissibility, or commencement of removal proceedings, will result from a foreign national’s prior failure to comply with NSEERS requirements. NSEERS, or the National Security Entry-Exit Registration System, was a special registration process for male foreign nationals from certain countries who were over the age of 16 and who entered the U.S. as nonimmigrants prior to September 10, 2001. Implemented in 2002 in the wake of the September 11 attacks, it sought to record the arrival and departure of individuals mostly from Middle Eastern countries. The program failed as a counterterrorism policy and was discriminatory and relied on racial profiling.  While in its latest memo DHS clarifies that only noncompliance, in and of itself, is not a sufficient basis for such consequences to adhere, DHS has not completely eliminated the lingering consequences of NSEERS: a determination of a willful NSEERS violations may still apply and have negative immigration consequences.  We think this is wrong.  DHS should, once and for all, remove the residual penalties associated with NSEERS.

 

Comment » | Department of Homeland Security

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