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The U.S. Citizenship and Immigration Service recently announced the opening of its newest New York City Immigration office. The Queens Immigration Office is located at 27-35 Jackson Ave. and is open from 7 a. m. to 3:30 p.m. The immigration office contains waiting rooms, an Application Support Center (for biometric interviews), and a naturalization ceremony room. The Queens immigration office is expected to serve about 500 people each business day. Immigration garnered a mere paragraph or two in President Obama’s State of the Union on Tuesday night. Given the scope of the topics discussed during the speech, it wasn’t expected that immigration (or any other subject) would garner much more than a few moments of focus. However, what was surprising about President Obama’s immigration comments was its stark negativity. President Obama mentioned the need for the United States to keep educated immigrants in the United States. However, President Obama immediately followed up by saying [I am paraphrasing] that …if comprehensive immigration reform cannot be reached this year, then send me a version of the Dream Act and I will sign it immediately. Although the President’s comments may be viewed as realistic or pragmatic, it is difficult to understand why the President wants to start the immigration debate without even attempting to get Comprehensive Immigration Reform, or even just highly-skilled immigrant legislation, passed. Even if they are not going to pass, at least put them on the table for discussion, right? Why just go for the Dream Act? If the President believes that highly-educated immigrants are important to the United States, why not put out a better immigration plan and attempt to get it passed? The U.S. Citizenship and Immigration Services (USCIS) recently released naturalization processing statistics for every USCIS local office in the United States. The report includes statistics from fiscal years 2010, 2011 and 2012. The report includes statistics on the number of applications accepted, approved and denied. Additionally, the report indicated that normal naturalization cases are taking about 4.9 months to process (on average), while military naturalization cases are taking about 4.2 months. To ensure your eligibility for naturalization, and to avoid unnecessary N-400 denials, contact a New York N-400 attorney. The report also provides average processing (or cycle) times for N-400 applications, calculated on a service-wide basis. As of October 2011, the average service-wide processing time for N-400 application was 4.2 months for military N-400 case and 4.9 months for non-military N-400 case. Please note that these average processing times are calculated on a service-wide basis, taking into account all field offices (including ones with very little load). A more reliable (and accurate) way to obtain specific field office processing times is to check the field office processing times for N-400 cases on USCIS website. In the rush to get foreign national fiances and fiancees into the United States, U.S. citizen sponsors sometimes do not realize, or just simply over look, what steps must be taken once a loved one enters the United States on a K-1 fiance visa. the following are a few of the steps that must be taken by K-1 visa couples. First, the obvious step, is that the U.S. citizen petitioner and K-1 visa holder must get married within 90 days of the K-1 visa holder’s entrance into the United States on the K-1 visa. This marriage must be completed within 90 days – failure for the U.S. citizen petitioner and K-1 beneficiary to marry within 90 days will result in extra work for the couple and the need for added input from a K-1 visa lawyer. If the K-1 visa beneficiary marries a person other than the U.S. citizen petitioner, it is advisable to contact an immigration lawyer to access what options may be available. Second, once the couple marries, it is necessary for the K-1 visa holder to adjust status to become a lawful permanent resident. This process can be started as soon as the couple is married – but not before. This process can take about five months to complete and often requires the couple to attend an interview at the local immigration office. this interview requires the attendance of both the K-1 visa petitioner and beneficiary. Once the process is completed, the K-1 visa beneficiary will be given conditional permanent residency (CPR). Third, at the same time that the couple is applying for adjustment of status, the K-1 beneficiary may seek work authorization and advance parole. Advance parole, once received, allows individuals to travel internationally without abandoning the adjustment of status application. On January 6, 2012, the USCIS (U.S. Citizenship and immigration Services) announced its intentions to “reduce the time that U.S. citizens are separated from their spouses and children” when certain unauthorized immigrants are in the United States and face the possibility of the 3/10 year bar if they depart the United States. The USCIS made the announce through its inclusion of a notice of intent in the Federal Register. Although this proposed change is great news for many – it is important to remember it is still not a certainty. Further, it is important to know who, and who won’t, benefit from the change in policy. Who does this change apply to?The announcement has the possibility of benefiting individuals who are an immediate relative of U.S. citizens who do not have current immigrant status and who entered the United States without inspection. What is the Current I-601 Process?Currently, an individual who qualifies must travel to a consulate outside of the United States before applying for what is called an extreme hardship waiver. Once the applicant submits the waiver, he or she must wait many months waiting for the USCIS to determine whether or not to approve the petition. Once the petition is approved, the individual is allowed to come back into the United States as a permanent resident. What is the Proposed I-601 Process?Under the proposed process, the applicant will be able to apply for the extreme hardship waiver without leaving the United States. Instead, once the waiver is provisionally approved, the applicant will be able to leave the U.S., attend the consulate interview, and return to the United States without prolonged separation from U.S. citizen family members. What is the Extreme Hardship Waiver?The extreme hardship waiver is so named because the immigration agency is suppose to grant the waiver if it determines that certain U.S. citizen immediate relatives would suffer extreme hardship if the individual is forced to depart the United States. Will all I-601 Waiver Applications Be Filed Stateside?No, not all I-601 waivers will be filed stateside. In fact, in many cases the waiver will not be allowed to be filed stateside. This change is only meant to benefit individuals who only need a waiver for their entry into the United States. It does not apply to waivers of criminal acts or misrepresentation.
Recently, the Customs and Border Protection Agency (CBP) released a question and answer worksheet about the process for its acceptance and adjudication of L-1 visas from Canadians. Unlike other nationalities, Canadians are able to apply for the L-1 visa for intracompany transferees at the border. Normally, the L-1 visa must be submitted to the USCIS – a much longer process compared to the process for Canadians. The question and answer worksheet discusses how the beneficiary and petitioner has the burden of proof on petitions, must submit the appropriate documentation for the petition, and must maintain the correct company relationship while the L-1 status is in use. For more information on the L-1 visa for Canadians, see the firm’s Canadian L-1 visa information sheet and the CBP’s recent Canadian L-1 Visa Question and Answer. The U.S. State Department has released the February 2012 Visa Bulletin. This month’s bulletin is highlighted by significant forward movement in EB-2 India and China and forward movement in FB-1. Employment-Based (EB) Summary of the February 2012 Visa Bulletin
Family-Based (FB) Summary of the February 2012 Visa Bulletin
A copy of the visa bulletin is provided below: February 2012 Visa BulletinA. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers during February. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by January 6th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. 3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES. 4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
*NOTE: For February, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08MAY09. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08MAY09 and earlier than 08JUN09. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”. Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002. 6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month. B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2012 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For February, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30. C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH For March, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
D. VISA AVAILABILITY IN THE COMING MONTHS FAMILY-sponsored categories (monthly) Worldwide dates: EMPLOYMENT-based categories (monthly) Employment First: Current Employment Second: China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility. Employment Third: Worldwide: up to one month Employment Fourth: Current Employment Fifth: Current Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time. Those categories with a “Current” projection will remain so for the foreseeable future. In a bizarre statement, the Customs and Border Protection (CBP) Agency recently reaffirmed that there are certain documents that are required for entrance into the United States – and that a scanned copy of a passport that is visible on an iPad is not sufficient. In an apparent attempt to squash what has become an emerging urban legend, the CBP states that an individual can only enter the United States if he or she has a valid passport, U.S. Passport card, Trusted Traveler card, or enhanced driver’s license. If a person does not have the required documents, the CBP officer will either determine identity and citizenship through another means, or will deny entry into the United States. The CBP’s statement stems from an actual instance where an applicant was admitted after showing a scanned image of his passport on his iPad, a valid driver’s license, and birth certificate. According to the CBP, the person was admitted because his driver’s license and birth certificate checked out and proved his identity and nationality. The iPad can’t do everything…yet.
The CBP’s Statement follows: CBP Statement on Approved Documents for Entry Into U.S.(Wednesday, January 04, 2012) Washington – The assertion that a traveler was admitted into the U.S. using solely a scanned image of his passport on an iPad is categorically false. In this case, the individual had both a driver’s license and birth certificate, which the CBP officer used to determine identity and citizenship in order to admit the traveler into the country. Since June 1, 2009, U.S. and Canadian citizens entering the U.S. by land or sea from within the Western Hemisphere are required to present a valid, WHTI-compliant document, which includes a passport, U.S. Passport card, Trusted Traveler card (NEXUS, SENTRI, FAST/EXPRES, or Global Entry), or enhanced driver’s license/enhanced identification card. Scanned or digital images of WHTI-compliant documents are not accepted forms of identification. If a traveler does not present WHTI-compliant documents, CBP officers must determine identity and citizenship using a variety of other means, or deny entry. U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
Republican Presidential frontrunner Mitt Romney recently announced that he would veto Dream act Legislation if he is elected president. The Dream Act, as many know, would allow young immigrants who came to the United States as minors to gain a path to lawful residency if they complete certain requirements (i.e. graduate from college, join the military, etc.). The Dream Act has been introduced as legislation in Congress for many consecutive years – however, it has never come close to reaching the President’s desk for signature. The announcement is a bit of surprise as Romney has appeared (at least to me) more pragmatic in addressing immigration issues than other presidential contenders. However, given his need to attract the more conservative fractions of the Republican party, his sudden announcement could easily be a campaign statement that he will soon forget if he is able to win the nomination and get into the general election. Once he gets to the general election, I think his stance on immigration will ease as he will then need to attract centralist independents away from President Obama. Lets see how it turns out…who knows…there may be a reason why I am a New York based immigration lawyer and not a political commentator.
On December 29, 2011, the DHS Ombudsman issued a report highlighting the inadequacies of the current extraordinary abilities visa and outstanding researcher/professor visa adjudication process. Additionally, the report recommended numerous improvements to the adjudication process. The report highlighted that many employers and potential applicants have complained about their inability to truly understand the requirements of the visas because of the subjectivity associated with the current adjudication process. The Ombudsman states: Our nation’s immigration laws recognize the importance of attracting individuals of extraordinary ability from around the world to the United States to continue their work in the arts, athletics, business, education, healthcare, and sciences. USCIS issued policy guidance which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to Form I-140 employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals. The Office of the Citizenship and Immigration Services Ombudsman met with stakeholders to discuss their concerns, reviewed filings and adjudications, examined the applicable law, engaged with USCIS operations and headquarters personnel. Stakeholders report that petitions adjudicated under this I-140 policy memo have resulted in decisions that are unfair, opaque, and inconsistent. USCIS Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analysis of I-140 petitions but instead changed when ISOs made a final merits determination. Based on its findings, the Ombudsman’s Office makes these recommendations to improve fairness, consistency, and transparency in adjudications of extraordinary ability employment-based petitions. Additionally, the Ombudsman suggested improvements to the EB 1-1 visa and EB 1-2 visa applications by:
The USCIS has announced that effective January 1st, 2012, it will begin accepting stand alone I-130 petitions at two different lockbox locations. The I-130 petition is used to file for an immigrant petition based upon family relationships, such as being a spouse of a U.S. citizen, child of a U.S. citizen, parent of a U.S. citizen, and sibling of U.S. citizen. The form will not be received at both a Chicago and Phoenix lockbox, and at a different location from where the I-130 is filed when accompanied by other immigration petitions. Failure to file at the correct location will result in a delay of the petition being processed (and its possible rejection). If you are seeking to file an I-130, please contact a family immigration lawyer. Yesterday, New York City Mayor Bloomberg announced that the joint team of Cornell University and Technion – Israeli Institute of Technology had won the city’s competition to develop a world-class technological institute on Roosevelt Island. It is hoped that it will be a catalyst to creating new and innovative companies in the New York City region. Two major themes resonated throughout the announcement speeches given by the Mayor and two school presidents. First, they all recognized that this opportunity has the possibility of being a “game-changing” event that could dramatically alter the future of the city and the nation’s development. It is expected that the new institute will help energize New York City into the next Silicon Valley. Second, the three leaders discussed how the project is meant to be inclusive and inviting – not exclusive. The institute intends to “expand the pool” of talented individuals coming to New York City to aid in its growth. This inclusion means not just Americans, but also talented foreign nationals who will be able to come and experience the United States while learning essential skills and knowledge. The selection of a team with a leading non-American institution demonstrates the desire for the institute to be international in scope. The city hopes that the institute’s graduates will largely stay in New York City. However, the question remains, will the United States allow these foreign national graduates to remain – on a large scale – in the United States? Current immigration laws for highly-skilled workers do not make it easy for these graduates to stay. Creating a new, top-flight technological institute in New York City is a great boost to the city – keeping the best and the brightest immigrants in the United States will be a much greater boost to the country. Each year, the Department of Homeland Security provides statistics from the previous year. These statistics provide great insight into immigration trends – especially when compared to previous years’ statistics. This holds especially true for the best and brightest immigrants - including those applying through the extraordinary abilities visa and the outstanding professors and researchers visa. The 2010 statistics show that EB 1-3 applicants (Multinational executives and managers) continue to be the largest subsection within the first priority worker section. Additionally, the statistics highlight that most EB1 visa applicants are already in the United States. Employment-based Visas -First Priority Workers
The AP is reporting that a reliever for the Marlins has been using a fictitious name to secure a visa into the United States since the beginning of the last decade. The pitcher has played for a number of major league teams, but is now stuck in the Dominican Republic. According to the report, the reliever is trying to get a new visa, but is (not so surprisingly) having difficulty.
The charts are on the DHS’s website. |
  Immigration Insight is maintained by Immigration Attorney Chris Gafner and is meant to shed light on, and create talking points about, current immigration issues. If you would like a specific topic discussed, please contact the firm. This blog, like the rest of this website, is not legal advice.  |
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For those that either enjoy statistics or history (or both), the Department of Homeland Security has provided an excellent map and bar graph collection of historical