CPVISA.COMNEWSLETTER “Informative * Innovative * Interesting” August 2007, Vol. VII.
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DRAMATIC REVERSAL BY USCIS: EMPLOYMENT BASED 1-485 FILING
GRANTED THROUGH AUGUST 17, 2007.
In a dramatic reversal of the July 2, 2007 Revised Visa Bulletin, the USCIS announced that it will accept EB (employment based) applications to adjust status for applicants whose priority dates are current under the original July Visa Bulletin (number 107). USCIS will accept application filed by August 17, 2007.
The U.S. Department of State (DOS) is withdrawing the infamous July 2, 2007 revised Visa Bulletin so that the original July Visa Bulletin (number 107) remains in effect. This bulletin shows availability for EB applicants (except those in the "other workers category) to file I-485s in July.
The current fee schedule will apply to applications filed under the original July Visa Bulletin. However, the new fee schedule becomes effective July 30, 2007 and will apply to all other applications filed on or after July 30, 2007.
We at the Law Offices of Curtis Pierce applaud the work of the American Immigration Law Foundation (AILF) which was prepared to file a lawsuit against USCIS and DOS for the July 2, 2007 issuance of a revised DOS Visa Bulletin This revised bulletin would have disallowed thousands of skilled workers with approved labor certifications to file for employment based green cards after their priority dates were made current in the original July Visa bulletin.
DREAM ACT IS BACK IN SPITE OF THE DEATH OF COMPREHENSIVE IMMIGRATION REFORM
The DREAM Act is back in spite of the death of comprehensive immigration reform. It is not a stand alone bill; rather, it is attached to the Defense Authorization bill (H.R. 1585). The DREAM (Development, Relief, and Education for Alien Minors) Act is designed to provide relief for students with no immigration status because their status is legally derived from their parents. These young people have grown up in the U.S. and have graduated from U.S. high schools, but their futures are limited.
Senators Richard Durbin (D-IL), Chuck Hagel (R-NE), and Richard Lugar (R-IN) have offered the provisions of the DREAM Act as an amendment (SA 2237) to the Defense Authorization legislation. Like the stand-alone DREAM Act, this amendment would provide a six-year path to permanent residence for undocumented students and restore the authority of state governments to determine residency criteria for in-state tuition.
Readers who wish to support the bill should contact their senators and urge them to vote "yes" on the Durbin-Hagel-Lugar DREAM Amendment (SA 2237) to the Defense Authorization legislation ((H.R. 1585).
CITY OF HAZELTON ORDINANCES RULED UNCONSTITUTIONAL
In 2006, Hazleton’s City Council enacted ordinances fining landlords who rent to undocumented immigrants and suspending the business licenses of the companies that hire such immigrants. But Thursday, July 27, 2007 a federal court sent a strong message that immigration is a federal issue, and the Pennsylvania city’s laws in question were unconstitutional and unenforceable. The court found that Hazleton’s laws unfairly targeted everyone; workers, employers, tenants and landlords.
The significance of the decision places policies regarding immigration where they belong: with the federal government. The court reiterated: “Even if federal law did not conflict with Hazleton’s measures, the City could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not.”
IMMIGRATION ITEMS OF INTEREST
J VISAS FOR PROFESSORS, RESEARCHERS, AND SCHOLARS
DO VISITING SCHOLARS NEED A NON-IMMIGRANT VISA TO TEACH OR RESEARCH IN THE U.S.?
Members of the academic profession coming to the United States to engage in usual academic activities such as lecturing, may travel on a B-1 visa or visa free under the Visa Waiver Program. Those who will receive an honorarium in addition to incidental expenses may still be eligible for the B-1 visa provided all of the following are met:
the activities will last no longer than nine days at a single institution;
the institution is a nonprofit research organization or a governmental research organization, or an institution of higher education, or a related or affiliated nonprofit entity;
such activities are conducted for the benefit of the institution or entity; and
the individual concerned has not accepted such payment or expenses from such institutions during the previous six month period. If the proposed activities are not exactly as described, an exchange visitor (J-1) or temporary work (H-1B) visa will be required.
The overall purpose of the Exchange Visitor program (J Visa), administered by the Department of State (DOS), is to increase mutual understanding through educational and cultural exchanges between the people of the U.S. and the people of other countries. Health Insurance - Exchange Visitors are required, as a condition of their J-1 status in the U.S., to carry health insurance for themselves and their accompanying family members in J status. By government regulation, minimum insurance coverage must provide the following:
$50,000 per accident or illness;
$ 7,500 for repatriation of remains;
$10,000 for medical evacuation to the home country;
a deductible (the amount you pay before the insurance begins to pay) not to exceed $500 per accident or illness;
co-insurance not to exceed 25% payable to the Exchange Visitor or sponsor;
a specific rating of the insurance carrier's ability to pay insurance claims.
Failure to comply with the government's health insurance regulation may result in termination of the Exchange Visitor's program. Important Documents, Terms and Procedures
Visa - A visa is your permission to apply for entry into the U.S.. As long as the Exchange Visitor stays in the U.S., it does not matter if the visa has expired. There are several kinds of visas (e.g., F-1, F-2 J-1, J-2). The visa status of your dependents is usually linked to the type of visa you have.
DS-2019 - Certificate of Eligibility used to obtain your J-1 Exchange Visitor Visa.
I-94 (Arrival/Departure Record) - The small white card issued by the USCIS upon entry to the U.S.. It is normally stapled in your passport on the page opposite your visa. The I-94 is your permit to stay in the U.S.
Admission Number- Upon admission to the U.S., the immigration officer issues each Exchange Visitor a unique 11 digit admission number. The number is intended to keep track of the Exchange Visitor's arrivals, departures, permission to work, and other matters. This number is found on the I-94.
Duration of Status (D/S)- The Exchange Visitor's permission to stay is defined as "Duration of Status". It appears on the I-94 as D/S and relates to the expected date of program completion (check item #3 on the (DS-2019). Exchange Visitors must file for an extension of program at least one month before this date.
Length of Stay - The visiting professor, researcher or scholar on a J-1 Exchange Visitor visa is admitted to the U.S. for a specific period of time. The length of the Exchange Visitor's stay is determined by the dates recorded in item #3 of the Form DS-2019.
The maximum total period of time allotted scholars in Exchange Visitor status is five years.
Program Transfer - If Exchange Visitors are transferring from another institution in the U.S., they must have an endorsement from the Responsible Officer at the former institution on the new DS-2019.
Travel and Re-entry to U.S. - Exchange Visitors leaving the U.S. for a temporary visit abroad must have the following documents in order to re-enter the U.S. in Exchange Visitor status:
a valid passport
a valid visa.
a current Form DS-2019
verification of financial support.
If you are traveling to a country other than your home country, you may need a visa to enter that country. You should call that country's embassy in Washington D.C. or visit www.travel.state.gov for more information.
Employment - Professors and research scholars may engage in occasional lectures and short-term consultations as long as they are incidental to the Exchange Visitor's primary program activities.
Employment of Dependents - Dependents of Exchange Visitors on J-1 visas entering the U.S. on J-2 visas may work after obtaining authorization from the USCIS if they demonstrate that funds earned from employment will not be used for the support of the J-1 Exchange Visitor. It generally takes the USCIS about two months to approve an employment authorization request.
THE QUOTA SYSTEM: How does it work? How are visas allocated?
In this section, we try to inform our readers about certain aspects of immigration law that are often misunderstood and cause confusion. Because of the complex nature of immigration law, misconceptions abound, even among attorneys.
What is the quota system?
Immigration is usually a waiting game (in the perspective of some, a crying game). The quota system regulates the number of non-citizens that become legal permanent residents (or Green Card holders) every fiscal year. The fiscal year runs from October 1 of the previous year through September 30. If the quota has been exceeded in one category, it will remain unavailable until September 30. That means waiting until a new quota becomes available on October 1.
Has the U.S. always had a quota system?
In theory, the U.S. initially had an “open immigration policy”. The Naturalization Act of 1790 imposed the first legal restriction on immigration. This act established requirements for citizenship that excluded non-whites.
Have quotas been imposed of specific religious and ethnic groups?
In the first half of the nineteenth century, the nativist movement sought to limit the large number of Catholic immigrants streaming to American cities from Ireland and Germany during the 1830s through the 1860s. Chinese immigration was restricted from 1882-1943 by the Chinese Exclusion Act until it was repealed in 1943. The national origin quota of 1910 was designed to limit immigration to western and northern Europeans. These are but three of many examples.
Why are quotas used?
Lawmakers limit immigration for reasons such as national security and economics. For example, because of the threat of war, the Alien Registration Act of 1940 increased governmental powers to protect the country.
What Does the Quota System Mean Today?
A limited number of non-citizens become legal permanent residents every year. Whether a person is able to become a legal permanent resident will be, in part, controlled by whether he or she can satisfy the quota requirements. The statute exempts from the quota “immediate relatives” defined as the “children, spouses and parents” of a U.S. citizen; when a child petitions for his or her parent, he or she must be at least 21 years of age.
The system is divided into the following categories:
Family Based Quotas
The quota for family immigrants is set at 480,000 less the number of immediate relative visas issued, with a minimum of 226,000 reserved for non–immediate relatives.)
Employment Based Quotas
The quota for employment-based immigrants is limited to 140,000 visas plus the unused numbers from the family preferences.
Special Visas – Diversity Lottery
Immigrant visas under the diversity lottery are set at 55,000. Other limits are country-based.
As noted above, the “immediate relative” category—spouses, parents, and children of U.S. citizens—is not subject to numerical limitations. Other relationships, which are subject to a quota system, are divided into family-based “preferences.”
The family preferences include four categories:
First Preference: unmarried sons and daughters of U.S. citizens;
Second Preference: spouses and children of LPRs (2A); and unmarried sons and daughters of LPRs (2B);
Third Preference: married sons and daughters of U.S. citizens; and
Fourth Preference: brothers and sisters of U.S. citizens.
In all of the immigrant visa preference categories, only the primary beneficiary need establish the familial or employment relation; the person’s spouse and minor children are eligible to immigrate under the same preference, but the total number of visas issued for that family count against the annual quota.
The quota system precludes the issuance of visas to nationals of any one country in excess of 25,600. This means there must be a way of allocating the visas by nationality as well as by the order in which the applications are received.
Employment Based Quotas The 1990 Immigration Act (IMMACT) marks the transition into the current system of immigration law, increasing the total number of employment-based visas to 140,000, distributing this number between priority workers (28.6%), professionals with advanced degrees and persons of exceptional ability (28.6%), skilled workers, professionals and other workers (28.6%) and special immigrants (7.1%).
What is the July 2007 Visa Bulletin Fiasco?
The quota system has received renewed focus in the world of immigration law during July of 2007 because of what some have called the “July 2007 Visa Bulletin Fiasco”. Many immigration attorneys and petitioners were shocked and confused when the July 2007 Visa Bulletin was issued and employment based visas were announced as current in nearly category. Then, as if the U.S. Department of State (DOS) waved a magic wand, it issued a revised July 2007 Visa Bulletin and no more visa numbers were available because the quotas had been filled.
In addition to the nationality allocation, the availability of visas under the quota system is determined by the person’s “priority date.” A priority date is that date on which a person initially submitted documentation establishing eligibility for one of the preference categories under the immigrant visa system.
Why Are Priority Dates so Important?
Since the early 1980s, there have been far more visa applicants than the available quota allows; thus the priority dates have an impact on the length of time it may take to immigrate. An explanation of the use of the priority dates can be illustrated by the visa chart published by the Department of State (DOS). The visa charts are updated each month and can be found on DOS’s website at the link below:
One central theme in U.S. immigration law is that of family unification. This was challenged in the recently defeated Senate bill. Since the proposed comprehensive immigration reform bill, S. 1639 died in the Senate in 2007, the policy of family unification has not been changed.
Currently, the INA provides for the immigration of dependent family members who are either “accompanying” or “following to join” the primary immigrant under the same immigrant visa preference category and priority date. A person is considered to be “accompanying” if he or she immigrates within six months of the primary beneficiary’s immigration; otherwise, the individual is considered “following to join.”
In order for an individual to be able to immigrate as a “following to join” dependent under the same immigrant category and priority date as the primary beneficiary, he or she must either be the primary beneficiary’s spouse or child as defined in the INA. The following to join rules also allow dependent family members to charge the country quotas that would be most advantageous for assuring family unity.
For example, Sven, a native and citizen of Sweden, immigrated to the United States in January 2000, as a married son of a U.S. citizen. If, when he came to the United States, he was unable to bring his spouse and child, the spouse and child could later immigrate as his dependents using the same visa preference and priority date that Sven used because they would be following to join.
While we debate and struggle with the quota system today, a survey of the origins of the system show that it has existed from all but the earliest days of the history of our country. Also, American history is characterized by restrictionist movements that attempted to block certain ethnic group from entering the United States or to limit the quotas for these groups.
Today quotas are the life blood of the immigration system and our Bible is the monthly Visa Bulletin published by the U.S. Department of State.
It is published by the Law Offices of Curtis Pierce, 213-327-0044, www.cpvisa.com.
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
Curtis F. Pierce
Attorney At Law Certified specialist, Immigration & Nationality Law
The State Bar Of California Board Of Legal Specialization
THE PACIFIC CENTER 523 WEST SIXTH STREET, SUITE 348 LOS ANGELES, CALIFORNIA 90014
Curtis F. Pierce Attorney At Law Certified Specialist, Immigration & Nationality Law The State Bar of California Board of Legal Specialization 523 West Sixth Street, Suite 348 Los Angeles, CA 90014 Tel: 213 327 0044 Fax. 213 327 0066 www.cpvisa.com