PIERCE'S IMMIGRATION LAW E-NEWSLETTER “Informative * Innovative * Interesting” WWW.CPVISA.COM
October 2007, Vol. IX.
CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER FOR THE THIRD CONSECUTIVE YEAR.
Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006.
ADMINISTRATION CRACKS DOWN ON EMPLOYERS WHO KNOWINGLY HIRE UNDOCUMENTED WORKERS USING "NO MATCH" RULE. FEDERAL JUDGE EXTENDS TRO.
After a hearing on October 2, 2007, a federal judge extended for 10 days an order that temporarily stops the government from implementing a new Department of Homeland Security (DHS) rule. The judge's order also stops the Social Security Administration (SSA) from beginning to send notices to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.
"We are pleased that the judge saw the need to continue to block this rule that would lead to increased exploitation of workers," said John Sweeney, president of the AFL-CIO. "More than 70 percent of SSA discrepancies refer to U.S. citizens, but the DHS regulation would encourage employers to fire any worker based on these erroneous discrepancies, especially if she has an accent or is perceived to be foreign born."
The background of the "No Match" rule is this. The administration is stepping up worksite enforcement by cracking down on employers who knowingly hire undocumented workers using the "No Match" Rule. In short, information on employee records must match records of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). Otherwise, the employer receives a "No Match Letter". The employer has ninety-three days to re-verify the information, once notified. If the employer is not able to do so, his recourse is to terminate employment or to continue employment and to risk civil and criminal sanctions from DHS.
On August 31st, a federal judge issued an order temporarily blocking the government from implementing this new rule. Judge Maxine Chesney's order also stopped the Social Security Administration (SSA) from beginning to send notices on Tuesday to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.
The order came as a result of a lawsuit filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County, along with other local labor movements. A hearing on the groups' request to permanently bar the implementation of the DHS rule is scheduled for October 1 before U.S. District Court Judge Charles Breyer.
Employers argue that legitimate clerical errors often occur. For example, a middle name and surname can be inverted on the records submitted by the employer and can result in a "no match" with the Social Security Administration. Good faith efforts to correct an error may take more than ninety-three days, in some instances. Hence, the employer is left with a dilemma. The employer risks a potential lawsuit from a terminated employee or legal action from the government if the employment is not terminated.
The President of the American Immigration Lawyers Association (AILA) is quoted saying that, "Stepping into the vacuum created by Congress' inability to enact workable comprehensive immigration reform, the Administration ramped up its enforcement arsenal today, leaving many employers between a rock and hard place...The real solution, recognized by the Administration, is comprehensive immigration reform."
U.S. Immigration and Customs Enforcement (ICE) has expanded criminal investigations against employers who knowing hire undocumented workers. Arrests of employers have increased from 24 in FY 1999 to 716 in 2006. The numbers for the current year are more striking. Arrests number 742 from the beginning of FY 2007 (through July 31).
Given stepped up enforcement procedures, what is an employer to do? How can an employer reduce the number of mismatched social security numbers from applicants? E-Verify, the Federal Electronic Employment Verification System is one option. In fact, federal contractors and vendors are required to use E-Verify.
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The E-Verify program will be launching new and exciting changes later next month, such as photo screening features and online resources for employees.
For more information on the Administration's initiative, see the August 10, 2007 White House Press Release: Improving Border Security and Immigration Within Existing Law.
NEW LIFE FOR THE DREAM ACT?: DREAM ACT INTRODUCED IN SEPTEMBER 2007 AS AMENDMENT TO H.R. 1585. PODCAST ABOUT THE DREAM ACT AVAILABLE.
Senator Richard Durbin, D-Ill. introduced the DREAM ACT (Development, Relief, Education of Alien Minors) as an amendment to a Defense Department authorization bill for fiscal year 2008. The purpose of the DREAM ACT is to give young people who were illegally brought to the U.S. as minors a chance to become U.S. citizens.
The DREAM Act would provide a path to legality for persons brought illegally to the United States by their parents or guardians as children, or whose parents attempted to immigrate legally but were then denied legality after several years in application, and whose children thus derived their legal status solely from their parents (the child also becoming illegal upon the parent's denial).
To qualify, the immigrant student would have to meet certain requirements such as:
Proof of having arrived in the United States at age 15 or younger;
Proof of residence in the United States for a least five (5) consecutive years since their date of arrival.
Having graduated from an American High School, or obtained a GED.
"Good moral character," essentially defined as the absence of a significant criminal record (or any drug charges whatsoever).
An estimated 65,000 immigrant students who meet these requirements graduate from high school each year.
Immigrants who meet the above requirements would be eligible to apply for a temporary six (6) year "conditional" residence permit which would allow them to live legally in the United States, obtain driver's licenses, attend college as in-state residents, work legally (including obtaining a social security number), and apply for special travel documents which would allow for travel outside of the country for limited amounts of time.
POD CAST AVAILABLE: Senator Dick Durbin discusses the DREAM ACT in a podcast. To listen to that pod cast, click the link below.
A version of the bill, though not yet called the "DREAM Act", was introduced during the 107th Congress in 2001 in the House and Senate. The text of the bill has also been placed in various other immigration-related bills (none yet successful), including the Comprehensive Immigration Reform Act of 2006 (S. 2611) and the Comprehensive Immigration Reform Act of 2007 (S. 1348).
LETTER FROM 13 GOVERNORS SUPPORTS RAISING H-1B CAP.
In spite of the failure of comprehensive immigration reform, certain issues remain alive, such as the need to increase the H1-B cap. California's Arnold Schwarzenegger, Deval Patrick of Massachusetts, and New York's Eliot Spitzer, were among thirteen governors who signed a Sept. 11, 2007 letter to Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi, Senate Minority Leader Mitch McConnell and House Minority Leader John Boehner urging them to raise the cap on the number of H1-B visas.
The H-1B Visa is for foreign professionals with specialized knowledge such as scientists, hi-tech professionals, engineers, and management consultants. The thirteen governors wrote that the current base of 65,000 H-1Bs was arbitrarily set in 1990 and does not meet the demands of today's economy for skilled professionals.
This is an issue of interest to employers, since the H1-B is employer specific. The H-1B petition must be filed by the employer requesting permission for the alien professional to work temporarily in the United States. The beneficiary employee may only work for the employer that was approved on the petition unless a transfer is arranged.
On September 12, 2007, President George W. Bush issued a Memorandum directing the Secretary of Homeland Security, Michael Chertoff, to defer the enforced departure for 18 months, until March 31, 2009, of any qualified Liberian national (or person without nationality who last habitually resided in Liberia) who is currently present in the United States and who is under a grant of Temporary Protected Status (TPS) as of September 30, 2007. The President also directed that the Department of Homeland Security (DHS) take steps to implement continued employment authorization for these individuals during the 18-month DED period. U.S. Citizenship and Immigration Services (USCIS) will be issuing a Federal Register notice very soon that will provide details regarding the extension of employment authorization until March 31, 2009 for individuals who are eligible for Liberian DED, including further details regarding Employment Authorization Documents (EADs) and information for employers. The notice, as well as an updated Fact Sheet and updated Questions and Answers will also be available on the USCIS website at www.uscis.gov.
Deferred Enforced Departure (DED) The authority to allow for deferred enforced departure (DED) of a class of aliens derives from the President’s constitutional powers to conduct foreign relations. It is an authority exercised previously by President George W. Bush and by Presidents William J. Clinton and George H. W. Bush. Although DED is not a specific immigration status, individuals covered by DED are not subject to enforcement actions to remove them from the United States, usually for a specific period of time. TPS for Liberia is scheduled to terminate at 12:01 a.m. on October 1, 2007. (See 71 FR 55000 (Sept. 20, 2006)). TPS was originally granted for Liberia due to armed conflict and widespread civil strife. That conflict ended in 2003, and conditions have improved such that TPS is no longer factually warranted. While acknowledging the progress in Liberia, the President cited political and economic conditions in the country that justify deferring the enforced departure for 18 months of those individuals who have expiring TPS status.
Who is Covered? Liberian nationals (or persons without nationality who last resided in Liberia) who are present in the United States under a grant of Temporary Protected Status (TPS) as of September 30, 2007, and who have continuously resided in the U.S. since October 1, 2002. Currently, there are approximately 3,500 Liberians in the U.S. under TPS designation.
Who is Not Covered?
The President’s directive specifically states the following persons are ineligible for Liberian DED coverage:
Those ineligible for TPS (includes persons whose TPS status has been withdrawn);
Those whose removal is determined to be in the best interest of the U.S.;
Those whose presence or activities in the U.S. would have potentially serious adverse foreign policy consequences for the U.S.;
Those who voluntarily returned to Liberia;
Those who were deported, excluded or removed prior to the President’s announcement; and
Those subject to extradition.
No Application or Registration Necessary
DED is automatic for qualified Liberians and persons without nationality who last resided in Liberia, regardless of age.
Length of Coverage The President’s Deferred Enforced Departure directive will cover eligible Liberians for 18 months: from Oct. 1, 2007, to March 31, 2009.
Extension of Employment Authorization For details on the implementation of the automatic extension of employment authorization through March 31, 2009 for individuals who are eligible for DED, the extension of certain TPS-related EADs previously issued to such individuals, and related matters, please refer to the Federal Register notice that USCIS will be publishing in the very near future regarding these subjects. That Federal Register notice, and related Questions and Answers, will be available at www.uscis.gov. Employers and individuals under DED are also reminded that any legally acceptable document or combination of documents described on the Form I-9, Employment Verification Form, may be presented as evidence of employment authorization and identity.
IMMIGRATION ITEMS OF INTEREST
BASICS FOR EMPLOYERS HIRING WORKERS FOR PERMANENT POSITIONS
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. In most instances, employers first seek labor certification from the U.S. Department of Labor (DOL). Once the application is certified by DOL (approved), the employer must petition the U.S Citizenship and Immigration Services (USCIS) for a visa. Approval of labor certificate does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA).
The foreign labor certification process is the responsibility of the employer, not the employee. This is a common misunderstanding on the part of employers.
PERM Qualifying Criteria:
Applications filed on or after March 28, 2005, must be filed using the new PERM process and adhere to the new PERM Regulations
The employer must hire the foreign worker as a full-time employee;
There must be a bona fide job opening available to U.S. workers;
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
For more information, see Curtis Pierce's article PERM and Labor Certification for Dummies. This article can be found on our website, www.cpvisa.com. See Immigration Law Simplified and drop down for PERM and Labor Certification for Dummies.
IMMIGRATION EDUCATION
PROPOSED IMMIGRATION LEGISLATION: HOW A BILL BECOMES A LAW
While we have devoted space this past year to the failed comprehensive immigration reform legislation and to the DREAM ACT, some readers may be fuzzy on the process of how a bill becomes a law.
Introduction of Legislation
House - Legislation is handed to the clerk of the House.
Senate - Members must gain recognition of the presiding officer to announce the introduction of a bill during the morning hour. If any senator objects, the introduction of the bill is postponed until the next day.
The bill is assigned a number. (e.g. HR 1 or S 1)
The bill is labeled with the sponsor's name.
The bill is sent to the Government Printing Office (GPO) and copies are made.
Senate bills can be jointly sponsored.
Members can cosponsor the piece of Legislation.
B.
Committee Action - The bill is referred to the appropriate committee by the Speaker of the House or the presiding officer in the Senate. Most often, the actual referral decision is made by the House or Senate parliamentarian. Bills may be referred to more than one committee and it may be split so that parts are sent to different committees. The Speaker of the House may set time limits on committees. Bills are placed on the calendar of the committee to which they have been assigned. Failure to act on a bill is equivalent to killing it. Bills in the House can only be released from committee without a proper committee vote by a discharge petition signed by a majority of the House membership (218 members).
Committee Steps:
Comments about the bill's merit are requested by government agencies.
Bill can be assigned to subcommittee by Chairman.
Hearings may be held.
Subcommittees report their findings to the full committee.
Finally there is a vote by the full committee - the bill is "ordered to be reported."
A committee will hold a "mark-up" session during which it will make revisions and additions. If substantial amendments are made, the committee can order the introduction of a "clean bill" which will include the proposed amendments. This new bill will have a new number and will be sent to the floor while the old bill is discarded. The chamber must approve, change or reject all committee amendments before conducting a final passage vote.
After the bill is reported, the committee staff prepares a written report explaining why they favor the bill and why they wish to see their amendments, if any, adopted. Committee members who oppose a bill sometimes write a dissenting opinion in the report. The report is sent back to the whole chamber and is placed on the calendar.
In the House, most bills go to the Rules committee before reaching the floor. The committee adopts rules that will govern the procedures under which the bill will be considered by the House. A "closed rule" sets strict time limits on debate and forbids the introduction of amendments. These rules can have a major impact on whether the bill passes.
C.
Floor Action
Legislation is placed on the Calendar
House: Bills are placed on one of four House Calendars. They are usually placed on the calendars in the order of which they are reported yet they don't usually come to floor in this order - some bills never reach the floor at all. The Speaker of the House and the Majority Leader decide what will reach the floor and when. (Legislation can also be brought to the floor by a discharge petition.)
Senate: Legislation is placed on the Legislative Calendar. There is also an Executive calendar to deal with treaties and nominations. Scheduling of legislation is the job of the Majority Leader. Bills can be brought to the floor whenever a majority of the Senate chooses.
Debate
House: Debate is limited by the rules formulated in the Rules Committee. The Committee of the Whole debates and amends the bill but cannot technically pass it. Debate is guided by the Sponsoring Committee and time is divided equally between proponents and opponents. The Committee decides how much time to allot to each person. Amendments must be germane to the subject of a bill - no riders are allowed. The bill is reported back to the House (to itself) and is voted on. A quorum call is a vote to make sure that there are enough members present (218) to have a final vote. If there is not a quorum, the House will adjourn or will send the Sergeant at Arms out to round up missing members.
Senate: debate is unlimited unless cloture is invoked. Members can speak as long as they want and amendments need not be germane - riders are often offered. Entire bills can therefore be offered as amendments to other bills. Unless cloture is invoked, Senators can use a filibuster to defeat a measure by "talking it to death."
Vote - the bill is voted on. If passed, it is then sent to the other chamber unless that chamber already has a similar measure under consideration. If either chamber does not pass the bill then it dies. If the House and Senate pass the same bill then it is sent to the President. If the House and Senate pass different bills they are sent to Conference Committee. Most major legislation goes to a Conference Committee.
D.
Conference Committee
Members from each house form a conference committee and meet to work out the differences. The committee is usually made up of senior members who are appointed by the presiding officers of the committee that originally dealt with the bill. The representatives from each house work to maintain their version of the bill.
If the Conference Committee reaches a compromise, it prepares a written conference report, which is submitted to each chamber.
The conference report must be approved by both the House and the Senate.
E.
The President - the bill is sent to the President for review.
A bill becomes law if signed by the President or if not signed within 10 days and Congress is in session.
If Congress adjourns before the 10 days and the President has not signed the bill then it does not become law ("Pocket Veto.")
If the President vetoes the bill it is sent back to Congress with a note listing his/her reasons. The chamber that originated the legislation can attempt to override the veto by a vote of two-thirds of those present. If the veto of the bill is overridden in both chambers then it becomes law.
F.
The Bill Becomes A Law - once a bill is signed by the President or his veto is overridden by both houses it becomes a law and is assigned an official number.
PROCESSING TIMES & CASE STATUS
Processing Times
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
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.")
IMMIGRATION LAW E-NEWSLETTER
curtis f.pierce
Attorney At Law
certified specialist, immigration & nationality law
the state bar of california board of legal specialization
CPVISA.COMNEWSLETTER “Informative * Innovative * Interesting” September 2007, Vol. VIII.
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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.
IMMIGRATION EDUCATION
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.
Family-Based Immigrants
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.
Nationality Allocation
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.
Priority Date
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.
Conclusion
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.
For more detailed information, see our website: www.cpvisa.com.
PROCESSING TIMES & CASE STATUS
Processing Times
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
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.")
CPVISA.COM NEWSLETTER
Curtis F. Pierce
Attorney At Law Certified specialist, Immigration & Nationality Law
The State Bar Of California Board Of Legal Specialization
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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
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