Sometimes it seems that waiting for priority dates can be like waiting for Godot. The May 2009 Visa Bulletin, published on April 8, 2009 by the U.S. Department of State, indicated that the EB-3 visa category is unavailable. Refer to Curtis Pierce's website for the current chart of visa numbers: EB-3 will remain unavailable until the beginning of the fiscal year in October.
EB-3 becoming unavailable means that no EB-3 adjustment of status applications will be accepted by USCIS after April 30, 2009, regardless of priority date. Persons who presently have an EB-3 adjustment of status application (Form I-485) pending at USCIS will see these applications held until their priority dates become current and available.
The bad news for employers and employees waiting for a Green Card is that the EB-3 category is unavailable and has come early this year. Last year, the news of unavailability was in the July Visa Bulletin.
What is an EB-3?
The third preference category of employment-based immigration is for professionals, skilled workers, and other workers. All petitions filed in the EB-3 category require a permanent, full-time job offer and a labor certification, there are no exceptions.
Each year the third preference is allotted about 40,000 visas, plus any that remain from the first and second preference categories. Eligibility requirements for the EB-3 classification are less stringent than the EB-1 and EB-2 classifications.
Three Subgroups
Specifically, this group includes skilled workers, professionals holding baccalaureate degrees and other workers.
1 Skilled workers are persons capable of performing a job requiring at least two years' training or experience.
2 Professionals with a baccalaureate degree are members of a profession with at least a university bachelor's degree.
3 Other workers are those persons capable of filling positions requiring less than two years' training or experience.
The other worker category is the category under which most people file.
All third preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for Reduction in Recruitment (RIR).
In order to understand the relevance of the news about EB-3s being unavailable, one must first understand the completed visa system.
Understanding the Visa System: Preference Categories of the Immigration and Nationality Act
In the visa system, each country has its own quota. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
Priority Dates
The United States Department of State publishes a monthly visa bulletin which lists cutoff priority dates for different immigration categories and birth countries.
When you file a preference petition with the USCIS or apply to the Department of Labor, you get assigned a Preference Category and a Priority Date. Your Priority Date is your number on the line. If your Priority Date is not current, you go to the end of the line. As time passes you get closer to the front of the line. When your Priority Date is current, you will be at the front of the line and ready to complete the processing of your case.
Only those intending immigrants with priority dates before the cutoff date are permitted to file their Adjustment of Status (AOS) applications and obtain their green card. The cutoff dates generally move forward over time as old cases are disposed of. However, in certain cases, such as if a large number of old cases work their way through the system at about the same time, the cutoff dates can actually retrogress (or roll back).
If an individual already has a pending AOS application on file when a retrogression occurs that places the cutoff earlier than the applicant's priority date, USCIS sets the application aside and will not adjudicate it until the priority date is current again.
The Priority Date determines when the foreign national will have the ability to file the final stage of the application for the Green Card.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas, which are divided into five classifications known as preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the USCIS.
The first three preference categories are each allotted approximately 40,000 visas annually plus certain allocations from other preference groups. The last two categories are each allotted approximately 10,000 visas annually. There is also a "spill-down" provision which allows extra, unused visas in any of the first three preference categories to be applied against excess demand in any other of the first three preference categories.
How can I track my priority date?
Take the guess work out of tracking your priority date by using the Priority Date Tracker, a free service of the U.S. Visa Bulletin. Simply input the correct information and receive a monthly update on your priority date. 60 days before your priority date is current, the Priority Date Trackerwill email you this information. http://www.visabulletin.us/priority_date_tracker.asp
Rosie the Riveter: Symbol of American Workers
NEW REQUIREMENTS FOR HIRING H-1B WORKERS FOR EMPLOYERS ACCEPTING TARP FUNDS: EMPLOY AMERICAN WORKERS ACT
On March 20, 2009, U.S. Citizenship and Immigration Services (USCIS) announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.
The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.
The USCIS is revising Form I-129, Petition for Nonimmigrant Worker to include a question asking whether the petition seeker is a recipient of covered funds.
For more information on this issue, see attorney Curtis Pierce's website.
LDS CONFLICTED ABOUT CHURCH'S ILLEGAL MIGRANT GROWTH: LATINOS JOINING MORMON CHURCH AT GREATER RATE THAN ANY OTHER ETHNIC GROUP.
According to an article in The Arizona Republic by Daniel Gonzalez on April 2, 2009, the Church of Jesus Christ of Latter Day Saints is facing a contemporary dilemma. The group that actively seeks converts and emphasizes family values is succeeding in drawing large numbers of Latino converts in the United States. The dilemma for church officials is that many of the converts are not yet documented.
This issue touches on a longstanding internal LDS debate. Should the church baptize the undocumented? Should it allow them temple entrance?
From a theological standpoint, many ask if illegal immigrants can keep LDS covenants considering that they are already violating civil law. Mormon converts must make certain covenants at baptism which obligates them to: 1. Stand as witnesses of God at all times and in all places; and 2. Serve God and keep his commandments. Furthermore, for a Mormon to enter a temple that person must be deemed worthy. One of the questions prospective temple-goers must answer in the affirmative is if they are honest in their dealings with their fellowmen.
The LDS Church has no official policy on illegal immigration nor does it ask local church officials to question prospective converts or members seeking temple privileges about their citizenship status. "The church does not see itself as an enforcement agency," Mark Tuttle, a spokesman for The Church of Jesus Christ of Latter-day Saints, said Thursday, February 14, 2009 repeating earlier church statements. (Dennis Romboy, Deseret Morning News, February 15, 2009)
Some members can't reconcile church membership and illegal status, particularly in light of one of the church's Articles of Faith that states, "We believe ... in obeying, honoring and sustaining the law." The Articles of Faith outline 13 basic points of belief of The Church of Jesus Christ of Latter-day Saints. The Prophet Joseph Smith first wrote them in a letter to John Wentworth, a newspaper editor, in response to Mr. Wentworth's request to know what members of the Church believed. They were subsequently published in Church periodicals. They are now regarded as scripture and included in the Pearl of Great Price.(Official Web site of The Church of Jesus Christ of Latter-day Saints)
Perhaps, the importance of obeying the law is more pointed in Doctrine & Covenants 134:1 (1-11) :
"We believe that governments were instituted of God for the benefit of man; and that he holds men or their acts in relation to them, both in making laws and administering them, for the good and safety of society."
Every good and safe society wrestles with ethical issues. Some Mormons who say the church teaches compassion are upset that fellow members, including Arizona state Sen. Russell Pearce, R-Mesa, have spearheaded a crackdown on illegal immigrants. Brigham Young University history Professor Ignacio Garcia offers a political explanation: "What has happened among a good number of LDS members is that they have been shaped by the Republican Party of the last 40 years. They gravitate to the Republican Party, and the party has become very anti-immigrant, culture-wars-oriented". (Daniel González , The Arizona Republic, April 2, 2009)
Students of religion and society are familiar with the acronym PEST (political, economic/ethical, social, theological) and examine issues in light of it. The dilemma of the undocumented joining the LDS church in records numbers is and promises to remain a PEST.
At the Law Offices of Curtis Pierce, we think that it is imperative to understand the immigrant experience and the special needs of immigrant clients. The experience of this vulnerable population is detailed in both fiction and academic writing. We feature noteworthy books on our newsletter in order to increase awareness of the struggles and obstacles that immigrants overcome before they are accepted into our society.
American Immigration Policy: Confronting the Nation's Challenges by Steven Koven and Frank Goetzke
Not Yet Published; forthcoming in 2010
This book is appropriate for serious readers and will be categorized as political science. The mission of this book is to counter the apocalyptic vision of the American "invasion" with a more balanced account of the consequences of immigration. The book will examine how the United States has dealt with immigration through enactment of various public policies over time.
It will approach the issue from a political, economic and cultural perspective with an emphasis on the qualitative, positive contributions of immigrants. The goal of the book is to provide some individual depth to the larger discussion of immigration that typically is carried out at the "macro" level. It argues that immigration policy is cyclical, ranging from very open to very closed borders. Moreover, it asserts that the unique contributions of immigrants cannot be quantified and therefore cost-benefit type assessments of immigration understate the positive impact of immigration on the nation.
Case studies of how individual immigrants contributed to the culture, politics or economic development of the United States offset "macro" empirical studies about high welfare costs of linked to immigration and the insidious cultural values they propagate. The book will review previous immigration policy, data related to economic costs of immigration, literature relevant to the question of the dilution or preservation of "American culture", and immigration policies of other Western nations.
The book will look at alternative perspectives on integration including an Americanization, Anglo-conformity perspective, a new American, melting pot perspective, and the cultural pluralism perspective. These perspectives in turn influence the degree to which specific options such as guest workers, amnesty, specialized skill, family unification, border enforcement, employer sanctions or political asylum are prioritized. The combination of rigorous data analysis and engaging, qualitative narrative make this book’s contribution to the debate on immigration policy in the United States unique.
This award winning book is appropriate for Grades 6 - 9
Ryan uses the experiences of her Mexican grandmother as the basis for this compelling story of immigration and assimilation, not only to a new country but also into a different social class. Esperanza's expectation that her 13th birthday will be celebrated with all the material pleasures and folk elements of her previous years is shattered when her father is murdered by bandits. His powerful stepbrothers then hold her mother as a social and economic hostage, wanting to force her remarriage to one of them, and go so far as to burn down the family home.
Esperanza's mother then decides to join the cook and gardener and their son as they move to the United States and work in California's agricultural industry. They embark on a new way of life, away from the uncles, and Esperanza unwillingly enters a world where she is no longer a princess but a worker. Set against the multiethnic, labor-organizing era of the Depression, the story of Esperanza remaking herself is satisfyingly complete, including dire illness and a difficult romance.
THE ICEMAN COMETH
ICE ("Immigration & Customs Enforcement") is a component of the Department of Homeland Security that was established in 2003 after the Homeland Security Act of 2002. Prior to 2003, many of the functions of ICE were performed by elements within United States Customs Service (Treasury), Immigration and Naturalization Service (Justice) and Federal Protective Service organizations. According to the the ICE website (www.ice.gov), "ICE works with components of Department of Homeland Security and federal, state and local organizations to secure the country and preserve our freedoms."
FOR IMMIGRATION ATTORNEYS ONLY: WHAT'S NEW IN IMMIGRATION LAW that I had better know?:
Immigration Law is constantly evolving. New cases, regulations, statutes, and memoranda are published almost every day. It is extremely difficult to keep up with all the changes. This section is intended to provide immigration attorneys with information concerning at least some of the most important developments in immigration law that took place in the last month. In other words, what happened in the last month of which I absolutely should be aware?
SURVIVING SPOUSES OF US CITIZENS HAVE NEW HOPE FOR IMMIGRATION BENEFITS
On April 20, 2009, the court issued a tentative order regarding plaintiffs' claims in the Hootkins v. Napolitano class action. The Court, in its Tentative Order, ruled, "The Court DENIES defendants' motion for partial summary judgment as to plaintiffs in the Ninth Circuit. The Court GRANTS in part and DENIES in part plaintiffs' renewed motion for summary judgment.
Specifically, the Court finds that plaintiffs who reside in the Ninth and Sixth Circuits are entitled to 'immediate relative' classification based on their status as surviving spouses of deceased United States citizens. Furthermore, the Court finds defendants' application of Freeman to Ninth Circuit plaintiffs, in the manner set forth in the Aytes Memorandum, to be invalid. First the Court holds that the Freeman holding applies equally to those cases in which an I-485 application was not filed prior to the U.S. citizen spouse's death. Furthermore, the Court finds 8 C.F.R. Sec. 205.1(a)(3)(C)(2), which revokes an alien's I-130 form on the basis of the death of the alien's U.S. citizen spouse and requires the alien to petition for humanitarian reinstatement and to file a substitute affidavit of support as a prerequisite to reinstatement of the I-130, to be invalid as a matter of law as applied to plaintiffs in the Ninth and Sixth Circuits...Furthermore, defendants are cautioned that they may not use factors arising from their improper denial of plaintiffs' applications to again deny the petition and application upon reopening them...Defendants are hereby ordered to reopen the immediate relative petitions and applications for adjustment of status and immigrant visas of plaintiffs in the Sixth and Ninth Circuits, and to adjudicate them in a manner consistent with the holding of the Court."
The Order is tentative, and may be modified by the Court following argument by the parties. A final ruling will follow at a later date. Based on previous tentative orders, the final order may be issued within a few weeks, but that is up to the Court. The Court DENIED the claims of plaintiffs outside the Sixth and Ninth Circuits, declining to apply the holdings of Freeman and Lockhart to plaintiffs outside the Sixth and Ninth Circuits, stating, "The Court is mindful of the importance of allowing the government to litigate legal issues before different courts throughout the country."
· 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.
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.")
In the words of President Kennedy,
the United States is a "nation of immigrants."
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