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ENTRYLAW Blog - Immigration Attorneys Portland Oregon
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ENTRYLAW Blog - Immigration Attorneys Portland Oregon
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Update: On April 12, 2016, USCIS announced it had received 236,000 filings . The H-1B cap and lottery brings anxiety to hundreds of thousands of employees and employers across the country, and the immigration attorneys and paralegals who assist them. Who can blame them? There are only 65,000 regular H-1B numbers available each year, plus 20,000 held aside for those who have master’s degrees or higher from U.S. educational institutions, and in 2015 there were nearly 233,000 applications filed for those 85,000 slots. Things are expected to be worse this year, when petitions are accepted in the 5 business day window from April 1, 2016 to April 7, 2016. Every application is subjected to a random lottery, and the chances each year are getting lower, from one in three to possibly one in four this year. There are some who are lucky and get picked in the lottery, and others who have entered and failed to gain a number for multiple years. Those who lose the lottery are often forced to leave their jobs, homes and lives behind, often uprooting children and leaving the country. But as I am about to explain, the government’s lottery system is illegal. Let’s start with the language of the statute, INA § 214(g)(3) (8 USC § 1184(g)(3)). That law states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” So, that’s what the law says. H-1B petitions are filed on a form I-129, and sent to either the California Service Center or Vermont Service Center depending on the location of employment. What does it mean when the law says H-1B beneficiaries shall be issued visas or given that status in the order in which petitions are filed? To find the answer to that question, one need only look to the wording of another statute dealing with petitions, INA § 203(e)(1) (8 USC § 1153(e)(1)), which reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…” Now, the wording of those two sections, the H-1B section, and the immigrant petition section, are virtually identical. Each states that the issuance shall be in the order in which petitions are filed. But in the immigrant context, there is no lottery, no rejections, and no beneficiary who will potentially have a never ending filing contest each year. That is because in the immigrant petition process, USCIS assigns what is called a “priority date” to each immigrant petition based on the order in which it was filed, or in some cases based on the underlying labor certification filing date. But in all cases a date is assigned that represents the order in which it was filed with a government agency. The petition is not rejected. Instead, the employer and beneficiary wait until there are sufficient visa numbers available for the filing date, which represents that person’s place in line. Contrast that with the way H-1B petitions are handled! USCIS gives employers just 5 business days each year in which to file, and then enters each petition into a lottery. 85,000 petitions are accepted, and then two months later all the other tens of thousands of applications are rejected and sent back, checks uncashed, to the petitioners. These rejected petitions are not assigned a priority date. The crazy thing is, a company could petition for the same individual year after year and still continue to be rejected, even though their initial H-1B filing was a year, or two years, or more, prior to the other petitioners whose cases were accepted. There is a word in the law for this kind of practice: arbitrary and capricious. Government rules and regulations which are arbitrary and capricious will not be upheld by the courts. Not only that, the statute clearly states that H-1B petitions shall be processed in the order in which they are filed. The will of Congress, expressed through clear language in the statute, prevails over any contrary agency practice, rule or regulation. It is of no avail that the agency rejects any petitions under the lottery and refuses to allow the filing, and thus the place in line, since the lottery and the rejection process are entirely illegal. Just think if this system were in place for immigrant petitions! The solution for the immigration agency is to cease the illegal lottery process, and allow H-1B petitioners to file a petition and receive a priority date. At such time as there are visas available, the H-1B petition beneficiary would be eligible for a visa or for a change of status. It may be that USCIS will need to revise its forms and procedures to comply with the law. It is possible that the I-129 petition will need to reflect approval of the H-1B classification, but not the status, until such time as there are H-1B visas available. This would not be unlike the immigrant categories, where there is an orderly (albeit long) process to obtain status after a petition approval in the numerically backlogged categories. But the lottery system is not legal, and it is not the solution. It is unfair to subject employers and employees to the whim of a system of chance, when there is no basis in law to do so. When Congress has determined a lottery process is necessary, it has enacted specific provisions allowing for this, such as in the case with the Diversity Visa Lottery. The Diversity Visa Lottery is covered by INA § 203(e)(2) (8 USC § 1153(e)(2)), which states “Immigrant visa numbers made available under subsection (c) (relating to diversity immigrants) shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State for the fiscal year involved.” Congress meant for that to be random. By stating that H-1B petitions, like immigrant petitions, be processed in the order in which they are filed, and in other sections involving Diversity Visa immigrants stating the process is to be random, Congress has mandated that USCIS not conduct a lottery for H-1B petitions. The principle of statutory interpretation relevant here is expressio unius est exclusio alterius , which means expression of one thing is the exclusion of others. Since Congress expressed intent for a random process for the Diversity Visa Lottery, but not for the H-1B or immigrant visa process, then random process is excluded as an option for H-1B processes. Since it is highly unlikely that USCIS will change its policy on its own, our firm has decided to consider proceeding with a class action lawsuit against the agency to compel an orderly system which is not based upon the arbitrary lottery system. We have prepared an online registration questionnaire for those affected employers or employees who have filed twice or more and have not been selected, and who would like to be considered as class plaintiffs or class members.…
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ENTRYLAW Blog - Immigration Attorneys Portland Oregon
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I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century. The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long. To understand how this has happened, you’ll need to understand some basics of the immigration process. We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met. The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers. In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date. Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first. After USCIS approves the petition, the agency sends it to the State Department when the person is outside the United States. It can be many years and even decades between the approval of an immigrant petition and a visa becoming available. During those years of waiting, an immigrant can check the visa bulletin published by the U.S. Department of State on a monthly basis, or wait to be contacted by the State Department. Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department. After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply. This is called registration for a visa. But the system of notification is far from perfect, and a person’s change in address or email address can result in the person not being notified. Lots of people fail to receive notification. Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year. There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted in 1976, when Congress authorized termination of registration. In 1976, Congress also authorized automatic revocation of the petition itself. Regulations were issued after that allowing not only for the State Department to terminate the person’s registration for a visa, but to also allow the immigration service to revoke the petition, effectively destroying it and the person’s place in line. When that happens, everything is absolutely gone, and the person has to start over. That’s a harsh result. In 1991, however, Congress took away the immigration service’s ability to revoke the petition and take away the person’s place in line. The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to 1991. This is unlawful and unauthorized. There were good reasons for Congress to disallow the complete destruction of a petition and place in line just because the State Department terminated the person’s registration for a visa. Back in 1975, when Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, 1975 to the House Judiciary Committee Chairman. In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress. Here is what the letter said: “Section 5 (3) would amend section 203(e) by inserting therein provision for cancellation of an alien’s registration on an immigrant visa waiting list under certain circumstances. Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so. The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control. If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked. The issue of registrants on immigrant visa waiting lists (often referred to as ‘insurance registrants’) who do not pursue their applications when given an opportunity to do so is a long-standing and difficult one. The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration. The Department is, therefore, sympathetic with the objective of this proposed amendment. On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers. For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail. Consular officers have been instructed to separate all pending immigrant visa applications into two categories – active and inactive. Among those cases considered to be ‘inactive’ are those in which the alien has failed to respond to an invitation to pursue his case within one year after the invitation is sent to him. Records pertaining to ‘inactive’ cases are stored separately from those pertaining to ‘active’ cases and are generally not maintained in the working areas of consular offices. Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted. Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories – active and inactive – and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude. Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 (3) of the bill. We are, therefore, opposed to the enactment of this section.” So, the State Department was itself opposed to the termination of registration provisions, particularly because it would result in “loss by an alien of any entitlement under the law,” but Congress enacted the restriction in 1976 anyway, although later in 1991, Congress acted to restore a person’s ability to have their visa petition remain intact after State Department terminated registration for the visa. Digging into the statute, INA Section 203(g) is the current one which went into effect on October 1, 1991, and 203(e) was the statute in existence prior to that date. The old 203(e) read as follows: “(e) ...The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to him of the availability of such visa, but the secretary shall reinstate the registration of any such alien who establishes within two years following notification of the availability of such visa that such failure to apply was due to circumstances beyond his control. Upon such termination the approval of any petition approved pursuant to section 204(b) shall be automatically revoked .” The new and current 203(g) section has almost identical language except for the last sentence, authorizing automatic revocation. In 1991, the statute was amended to specifically remove that. So that means as of 1991, USCIS had no authority to automatically revoke petitions in cases where the immigrant’s visa registration was terminated. Yet, the automatic revocation regulations were drafted prior to the change, and were never updated, and thus USCIS has been unlawfully revoking the approval of petitions for the past 24 years based on outdated and unlawful regulations. There is a section which authorizes USCIS to revoke petitions. INA Section 205, states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204. Such revocation shall be effective as of the date of approval of any such petition.” That section does not, however, authorize automatic revocation. Courts have held that the immigration service cannot automatically revoke petitions, and that “good and sufficient cause” requires something that would have formed the basis for a denial in the first place. The Board of Immigration Appeals, in a case called Matter of Estime, held that petitions can only be revoked based on facts which might have resulted in a denial in the first place. For example, if USCIS approves a case and then discovers later a fraud was committed, then that is good and sufficient cause. Also, if someone does not respond to Department of State fast enough, then the statute authorizes the State Department to terminate their registration with the State Department. But that by no means constitutes a basis for USCIS to then revoke the approval of the petition. There are drastic consequences that result from termination followed by automatic revocation – loss of priority date is the big one. There is also the case of Singh v. Clinton, in the 9th Circuit, which holds that in order to be effective, the “alien” must be notified of the availability of the visa, which means the beneficiary, and you may well know that NVC has been bad about sending any notice to beneficiaries at all, instead sending the notice to the petitioner. So most terminations are not valid for that reason. But termination of registration can be remedied by paying the visa fee again, and getting the case put back into active status. When USCIS revokes a petition, however, it has far ranging consequences. As I said before, it results in the destruction of the petition, and also in the loss of one’s place in line. USCIS must immediately stop revoking petitions following a State Department termination of visa registration. Then, the agency needs to update its regulations to be in compliance with the law passed in 1991. If the agency fails to do these things, then the courts should step in and require them to halt the unlawful practice. Longstanding canons of statutory interpretation hold that the regulations cannot do more than the statute allows. Here the regulation does only what the old law allowed, and goes beyond the current law. The USCIS policy here is vulnerable to a legal challenge, and the agency would be wise to update the policy before a judge tells them to. Photo by Digital Vision./Photodisc / Getty Images…
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1 How Does Uncle Sam Waste Immigrant Visas? 12:08
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Tweet #visagate2015 I'm going to explain exactly how the government wastes on average tens of thousands of immigrant visas every year, contrary to Congressional intent, systematically compromising the workforce and keeping families apart. Every number in this report represents a green card which could have been issued to a waiting immigrant, but was not handed out due to government mismanagement and ineptitude. This loss of numbers impacts the very lives of legal immigrants in significant and permanent ways. To understand how this happens, we have to look at numbers. Because the formulas and calculations get a little complicated, and because the system of numerical limits set up by Congress in 1990 doesn't make a lot of sense, I'm going to use an analogy. We'll talk about how the system is like a theater that distributes tickets. The show is the American Dream, and not everyone gets seated. In fact, in this theater, not every seat gets filled even though there are plenty of people wanting to see the show. The theater analogy is based on real immigrant categories and numbers. First, the immediate relatives of U.S. citizens are spouses, parents and minor children of U.S. citizens. Immediate relatives can immigrate in an unlimited number, so we will call them the VIPs. Second, are the family immigrants, such as the spouses of permanent residents, adult children of citizens, and brothers and sisters of citizens. We'll just call them family immigrants. Third, are the employment immigrants, such as advance degree holders, individuals of extraordinary ability, outstanding researchers and professors, and other professionals. So the three categories are VIP, family and employment. In 1990, Congress established a limit of 140,000 employment immigrants, and a limit of 480,000 family immigrants, except that the numbers of VIP immigrants who were given green cards from the previous year would subtract from the family limit. For example, in 1989, when Congress would have been considering what rules to enact, there were 217,000 VIPs. So the number of family immigrants would have been 480,000 minus 217,000, which is 263,000. As a protection against a situation where there were more VIPs in future years, Congress established a minimum of 226,000 immigrants for the family category. So even if the number of VIPs in the prior year was more than the 480,000, there would still be 226,000 family immigrants allowed for the year. Also, to protect against numbers going unused, Congress allowed unused family numbers to be used in the employment line the next year, and unused employment numbers to be used in the family line the following year. You can see Congress wanted all the numbers utilized. Let's get to the theater. There is one particular theater employee who holds all the tickets to the show. Let's call him Uncle Sam, since he represents the government. Each night at the theater represents a year of immigration. For simplicity, let's not use thousands of tickets, but just hundreds. So Sam is holding 140 instead of 140,000 tickets for employment folks. He has 480 family tickets, but the theater boss - that's Congress, let's call her Big Boss - said he has to subtract the number of VIPs who came in the night before. Let's use the example of 1989 numbers, and say 217 VIPs came through the door last night. So, 480 minus 217 equals 263, which is the number of tickets that can be used for the family line. That night, Sam is so slow he only manages to distribute 130 tickets to the employment line before the show is over, leaving 10 seats unfilled. He also gives out only 210 of the 263 tickets for family, leaving 53 seats unfilled. That night 300 VIPs come to watch the show. Big Boss tells Sam to take the 10 employment tickets he failed to hand out in time and put them in the family pile for the next night, and the 53 undistributed family tickets into the employment pile. He does, and the next day he takes 140 new employment tickets and adds them to the 53 family tickets so he has 193 tickets. He takes 480 new family tickets, plus the 10 employment tickets, which is 490, but then Big Boss tells him to subtract last night's VIP numbers from the pile, leaving him with only 190. But since the family line always has a minimum of 226 tickets, he increases the tickets to that number. Every night thereafter, Sam slowly hands out the tickets, failing to give them all out, and almost always leaving people waiting outside while empty seats remain inside for the American Dream show. He moves the undistributed employment tickets to the family pile for the next night, but because each night the VIPs are in the 400 to 500 range now, he always just has 226 family tickets the next night. The unused employment tickets essentially vanish. That is what is happening with our immigration system, and has been happening from 1990 until the present time. The CIS Ombudsman's office, which is an independent office within the Department of Homeland Security which provides some independent oversight of the country's immigration agency the USCIS, issued a report in 2010 which showed that over the years, over half a million employment based green cards were wasted, and nearly a quarter million family green cards lost as well. In 2000, the AC21 law provided for recapture of 130,000 of the lost employment numbers, and in 2005 the REAL ID Act recaptured another 50,000 employment numbers, still leaving about 326,000 employment based green cards wasted, unused, and lost due to government mismanagement of the system. You know, I gotta say, if Sam was my employee I would have put him on a performance improvement plan long ago, but Big Boss (i.e. Congress) has simply given him extra tickets to use, and in turn, waste and lose again. In fact, after the bail out of Sam's losses, he has continued to lose them. Even after the 2010 Ombudsman's report, the losses have continued. It is hard to tell, because in 2008, after the REAL ID Act bailout, Sam stopped providing the detailed calculations used to show the unused numbers. That's right, the reports abruptly stopped, leaving only the raw data. Well, I wanted to know just how many green cards were lost to Sam's slow moving hand in the five fiscal years from 2010 to 2014, so I got out my calculator, and started adding and subtracting. It was like helping my middle schooler all over again with math problems. But now, for the first time, everyone can see the waste that has occurred since the Ombudsman's 2010 report to Big Boss. More than 38,000 family numbers were lost, and over 8,500 employment green cards were wasted, just in the past 5 years alone. Those are more than just numbers. Those are lives hanging in the balance. Those numbers represent separated family members, dreams on hold, and children who age out and lose eligibility. To be fair, Sam has a difficult job. Big Boss stuck him with a formula that was bound to fail from the get-go. While Congress may have intended all the unused visas to roll over from one category to the other and vice-versa, they failed to anticipate that the number of VIPs, the immediate relatives, would dwarf the 480,000 limit, leaving only the 226,000 minimum. If they had realized that back in 1989 or 90, perhaps they would have added the unused numbers in the employment column to the 226,000 minimum instead of the 480,000, and the numbers wouldn't be lost. But the VIP numbers have been over 400,000 for decades, and now every single unused visa in the employment category goes to waste. The dual date Visa Bulletin, announced in September 2015 for October 2015, was an attempt to allow individuals to file earlier, and thus give the agency more time to process applications to final decision before the theater closed for the night. By providing two lists, one for those who could file, and one for those whose cases could finally be approved, the agency would have a better chance at finishing the work in time. The dual date Visa Bulletin was an attempt to work within the existing flawed system to simply give Sam more time to hand out tickets so they're fully distributed, and so the American Dream show would have all seats filled. But in its execution, the October 2015 Visa Bulletin failed because the two agencies which give out green cards, the Department of State and the USCIS, can't seem to communicate. Because of this time proven reality, the system simply needs changing. It is unrealistic to fire Sam, since he's the only one who Big Boss can hire to do the job. The green card numbers need to be allowed to truly roll over, without being lost to the black hole. The numbers lost, just in the past 5 years since the Ombudsman's report (see figure below), should be reason enough to upgrade the system. Remember the operating system in 1990? It was Windows 3.0. Wasted Visas FY2010 - FY2014 - Calculations by Brent Renison, Esq. - cOPYRIGHT 2015 pARRILLI rENISON llc ALL RIGHTS RESERVED. 2010 CIS Ombudsman's Report on Unused Family and Employment Preference numbers from fiscal years 1992 until 2009:…
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ENTRYLAW Blog - Immigration Attorneys Portland Oregon
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While the visa bulletin fakeout has been a major focus of everyone's attention, let's not forget that the same mismanagement resulted in the waste of hundreds of thousands of immigrant visas (green cards) that could have been used over past years. Those visas are lost forever, and without special legislation will stay that way. The wasted immigrant visas are the reason the backlogs are so bad in the first place. Every single person impacted by the October 2015 Visa Bulletin Fakeout would have already received a green card by now if the 326,000 visas were not wasted in past years. While desperate immigrants scramble for a few thousand visas each year, remember the wasted visas, and how the government has failed time and again to protect against it. Listen to the podcast to learn the full details (either on the player above, or on iTunes by subscribing - see "get it on iTunes button to the left). For listeners, here are some resources: 2011 NFAP Policy Brief: Waiting and Waiting "A surprising contributing factor to the employment-based green card backlog is unused visas from prior years. Between FY 1992 and FY 2006, more than 506,000 employment-based immigrant visas went unused, as illustrated in the Appendix.10 Administrative issues within the federal government, particularly prior to FY 2005, prevented the U.S. immigration system from distributing all of the employment-based green cards available under the law. The State Department reports that 180,039 of the 506,410 unused employment visas have been recaptured by special legislation.11 That leaves more than 300,000 never utilized. " see page 8. 2011 Congressional Research Service Report on Per Country Limits Extensive look into the per country limits and history Analysis: New High Skilled Immigration Bills "In order to reduce visa backlogs, the bill calls for the recapture of unused EB visas for fiscal years 1992 through 2013, to be used beginning in FY 2016. Going forward, it calls on the Department of Homeland Security (DHS) and Department of State to ensure that every EB visa authorized to be used within a fiscal year is issued to a qualified applicant. Any unused EB visas would roll over to the following fiscal year. According to U.S. Citizenship and Immigration Services (USCIS), over 500,000 EB visas were unused between FY 1992 and FY 2009, 180,000 of which were recaptured by previous legislation." 2010 CIS Ombusdman Annual Report "Coordination between the agencies is improving, but remains a challenge." See Chart of Wasted Visas on Page 53 of the PDF report. Wall Street Journal Graphic on Visa Wait Times over two decades Waiting for a Green Card Chart Tell Congress You Support iSquared Act For background on the visa bulletin fakeout, see the last post and podcast.…
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1 Understanding the Visa Bulletin Fakeout 11:24
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We’re going to take a look at the visa bulletin fakeout, or fiasco, or visagate 2015 as its been called. You’ve heard about it because you were either hoping to file a green card application tomorrow, October first, or your employees have let you know they will suddenly not be able to proceed with an application now. So what happened? In this blog post we’ll take a look at what is going on, who is affected, why it happened, when it might be resolved, and how to deal with the aftermath. If you want to listen during your commute, download our podcast on iTunes. In a nutshell, the government announced on September 9, 2015 that people who had been waiting in line for years to apply for their green cards could file applications on October 1, 2015. Thousands of people began preparing their applications by hiring attorneys, attending medical exams, obtaining documentation, and raising their hopes. Then, 16 days later on September 25, 2015, just days before October 1, the government published a revised bulletin telling those thousands of people they could not apply for green cards in October after all. Those people were all born in just four countries, China, India, Mexico and the Philippines. To understand why this happened, a bit of a primer on the immigration system is in order. Its important to know that a green card is not U.S. citizenship. A green card allows a person the right to live and work here permanently, and to apply for U.S. citizenship after holding a green card for three or five years. People seeking a green card are considered immigrants. To get a green card in most cases, a petition must be filed by a close relative who is a U.S. citizen or permanent resident, or by a U.S. employer. When a petition is filed, the immigrant who is the beneficiary of that petition is given a date. The date identifies the immigrant’s place in the queue, along with all the other immigrants who are filing petitions. This date is called the priority date. The immigrant is also assigned a category, depending on their particular family relationship or specific job offer and skills. So, what about the country of birth thing? Well, Congress has passed laws limiting the overall number of immigrants, but also the number coming from each country. In 1965, Congress abolished a discriminatory system which was created in the 1920’s which had limited immigration from each country to the percentage in existence in 1890. The 1920’s law was clearly meant to exclude certain nationalities. The 1965 law, enacted as part of the civil rights movement, sought to establish a level playing field, with a 20,000 limit from any one country. In 1976 a revision to the law made it necessary to have a visa number available at the time of filing, not just at the time of approval. In 1990, Congress increased employment based immigration from 54,000 to 140,000, and changed the per country limit to 7% of the numbers. That’s still the law today. Once a month, the State Department publishes a visa bulletin advertising what priority dates in each category will be permitted to apply for a green card the next month. Essentially, if an immigrant’s priority date is earlier than the published date, they can apply. For example, if a person’s priority date is July 1, 2010, and the visa bulletin shows a date of June 30, 2010, they can’t yet apply, but if that date were July 1, 2010 or after, they could apply. The system is designed to let people with an earlier date in the queue apply first. One strange thing about the visa bulletin is that each version supercedes and overrides the previous bulletin. For example, using the July 1, 2010 priority date from before, if the immigrant applied for a green card during a month when the visa bulletin showed a July 1, 2010 date, but then the next month the bulletin published a June 1, 2010 date, the case could not be approved in that month, but would remain pending, like on a shelf somewhere, until the published date was once again later than the person’s priority date. Because the usual bureaucratic process of approving a case usually takes at least six months and often more, the visa bulletin date can in fact retrogress instead of progress, causing the person to be stuck with a pending case and a visa bulletin with dates earlier than the person’s priority date. The immigrant must then wait until the visa bulletin publishes a date later than the person’s priority date to receive final approval on the green card. It’s a totally crazy system. To address this anomaly, President Obama announced in November 2014 that a visa modernization process would be implemented. When the visa bulletin was published on September 9, 2015, it had for the first time two dates for each category of immigrant, one to reference for filing applications, and another to consult for approval of the green card. This dual date system was intended to allow immigrants to file sooner for their green cards so that by the time the bureaucratic process was completed, the final approval would issue without delay. In other words, since the 1976 law states an immigrant must have a visa number available at the time of filing, but bureaucratic delays make it simply impossible for a green card to be approved in the same month the application is filed, they have devised two dates to accommodate filing ahead of time so the final approval can come more quickly. This was seen as a positive improvement to the system. Then came the fakeout. Another October visa bulletin was issued on September 25, 2015 which stated, “This bulletin supercedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes.” It isn’t hard to draw the conclusion from this statement that a monumental error must have been made in issuing the September 9, 2015 visa bulletin. Some kind of internal government miscommunication. The people affected by the mistake were all from China, India, Mexico and the Philippines because those countries have different dates for each particular category due to the imposition of the 7 percent per country limits set in 1990. In the case of China and India, the impacted category was advance degree professionals. The date for China was changed from May 1, 2014 back to January 1, 2013, a difference of one year and five months. The date for India went from July 1, 2011 to July 1, 2009, a two year jump backward. For the Philippines, the professional and skilled worker category went from January 1, 2015 to January 1, 2010, a five year retrogression. And married Mexican immigrants with U.S. citizen parents moved a year and five months from October 1, 1996 to May 1, 1995. The difference, of course, between this retrogression and other times the visa bulletin dates are changed for the worse is that no one has had a chance to utilize the October visa bulletin since it was not set to go into effect until tomorrow, October 1, 2015. For example, an advance degree professional from India with a priority date of July 1, 2010 was eligible to file for a green card based on the September 9 visa bulletin for October 2015, because the date for filing was set at July 1, 2011, but was not eligible under the September 25 revised visa bulletin for October because the date was changed to July 1, 2009. The visa bulletin fakeout happened on a Friday afternoon, and by this past Monday September 28, 2015, a class action lawsuit was filed, a White House petition initiated, and a grass roots campaign organized to send flowers to the agency heads in Washington D.C. pleading for mercy! So, with all this outrage, the lawsuit, the grassroots organization, what is likely to happen? One need only look at history to have a clue. As unbelievable as it may seem, this fakeout happened back in 2007. The same public outcry occurred in 2007, and within just a few weeks the State Department and the Immigration Service agreed to let the impacted immigrants, who by all accounts were more numerous than the group impacted now, to file green card applications in a 30 day window. In 2007 there was a threatened class action lawsuit, a flowers campaign, and members of Congress breathing down the neck of the agency. Reason prevailed and the agency did what was honorable, to recognize the hardship of those who acted in reliance on the earlier bulletin. By allowing a narrow window of time within which to file, the agency would not be allowing more immigrants to get green cards than is allowed by Congress. The final approval dates still supercede the filing dates which are published, and so those who file in such a window may see their cases take a little longer to be approved. But there is a distinct advantage to having a green card application filed and in process, including the ability to obtain special work and travel permission, the freedom in some cases to get a promotion or move to a better job, and the ability to have children who might otherwise become too old be included in the application There is a lot at stake this year, and everyone is hoping the agency will do the right thing. Nothing is going to happen, however, without the active involvement of concerned people. In the immediate short term, people should sign the White House petition , which has over 9,000 signatures but needs another 91,000, and contact their elected representatives. If you want to share your case details with the lawyers handling the class action, visit Greg Siskind’s website at visalaw.com . Long term, the per country limits should either be removed or increased. The iSquared Act would increase the per country limit to fifteen percent, and is a step in the right direction.…
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ENTRYLAW Blog - Immigration Attorneys Portland Oregon
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1 Obama Visa Modernization - Visa Bulletin Just Got Better 4:31
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As part of President Obama's Executive Action announced November 2014, the gate that opens and closes the door to liberty just received two doors - one for those who can apply for green cards and a separate door for those who can be approved. Until now, the visa bulletin, which summarizes the dates of available priority dates for those with approved immigrant petitions, has only had one list of dates, both for those who can apply and those who can be approved. This has created difficulties that are far too complex to describe here, but suffice it to say that it was a poorly conceived process which held back those who could file for adjustment of status. Now there are two different dates to consult - one list is for "Application Final Action Dates" which is for those who can be approved for the green card, and one is for "Dates for Filing Applications" which is for those who can file for adjustment of status, and then remain pending until the Final Action Date is reached. This new system appears to allow immigrants to file for adjustment sooner than they would otherwise have been able to do, which has a variety of positive implications. First, dependents who might otherwise "age out" by turning 21 may be able to preserve status by filing for adjustment of status within one year of the visa availability date. Second, those who are in other visa categories which do not allow extension of status beyond the limits of the visa (such as L-1B) may be able to avoid having to get an H-1B because dates for filing may come current for them sooner, allowing them to apply to adjust status. Upon the filing of an adjustment of status application, each applicant is allowed to apply for work and travel permits, which may reduce the need for extension of nonimmigrant status sooner. As an example, effective October 1, 2015, Indian born applicants in the Employment Based Second (EB-2) category (EB-2 India) will have a Final Action date of May 1, 2005, which means that if their Priority Date (the date the PERM Labor Certification was filed, which is then assigned to the I-140 Immigrant petition) is on or before May 1, 2005, they can be approved for permanent resident status. In the old system, that would also be the date the USCIS would accept for adjustment of status filings. But with the new visa bulletin, the Dates for Filing shows EB-2 India at July 1, 2011, which is six (6) years later than the Final Action date. This means that those EB-2 India applicants whose priority dates fall on or before July 1, 2011 can file adjustment of status applications as of October 1, 2015, even if they can't yet be approved for the status. Their cases can remain pending adjustment of status until the Final Action date moves forward to their priority date. This is great news for many families. What is unclear as of this writing is whether the 3 year extensions of H-1B status beyond the 6 year maximum may be negatively impacted. Such extensions, allowed under the AC21 law, depend on a visa date not being immediately available. It is not clear whether the agency will use the Final Application Date or the Application Date to determine whether a visa number is available for use. Overall, this is a very positive change to the system, and represents a true executive modernization of the visa system, without having to resort to the gridlocked Congress.…
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