Archive for the ‘Immigration’ Category

Current Trends and Future Visa Number Prognostications

Wednesday, November 26th, 2014

The new fiscal year began on October 1, and with it came the annual infusion of visa numbers allocated to the various preference categories that comprise the system for immigrant visa availability under U.S. immigration law. Recently, Charlie Oppenheim, Chief of the State Department’s Visa Control and Reporting Division, provided his analysis of current trends and future projections beyond the basic visa availability updates provided in the monthly Visa Bulletin.

On the employment-based preference side, where there are 140,000 visas allocated annually, backlogs have plagued the system for years and years, in part because not only is the principal foreign national counted against the numbers of visas allocated but also dependent family members. (About 45 percent of the overall numbers are used by principals). Oppenheim reports that the worldwide employment-based third preference (EB-3) (for skilled workers, professionals, and other workers) will move faster in the coming months, as will EB-3 India. But, retrogression for Indian nationals who are eligible for EB-2 (members of professions holding advanced degrees or persons of exceptional ability) appears to be imminent, and could happen as early as November with a cut-off date in 2005. Once this happens, EB-2 India is not likely to advance again until June 2015. A major factor in this anticipated retrogression is the large volume of EB-3 to EB-2 upgrades for Indian-born applicants. The wait for employment-based immigrant visas for India continues to be long — five to eleven years. The Philippines, another severely backlogged country, is however experiencing lower demand. The cut-off date for the EB-3 and “Other Worker” categories is now the same as it is worldwide, 10/01/2011.

Mr. Oppenheim also reports that the EB-4 preference category, used by Special Immigrants — which includes G-4s applying for green cards, special juvenile immigrants, religious workers, certain Iraqis, and broadcasters, among others — could have a cut-off date of August or September of each year going forward.  In practice, this will mean that these intending immigrants will have to wait one to two months to file their cases if they wait to the end of the fiscal year.

EB-5 immigrant investor visas, which have become increasingly popular, for the first time became “unavailable” for Chinese nationals in the final month of the fiscal year ending September 30.  The category is now current. This marked the first time since 1990, when the EB-5 category was first established, that EB-5 visas were unavailable for any country and the first time for the Chinese. No other country was affected by the backlog. Oppenheim predicts that the EB-5 category for China will remain “current” through May or June 2015.  This prediction is based on the assumption that USCIS will continue to issue approvals of EB-5 petitions at the current rate, as well as an assumption that a significant portion of the more than 5,000 applicants with approved EB-5 petitions at the National Visa Center (NVC) will come forward to be processed. Thereafter, Chinese nationals should expect significant backlogs in this visa category, which could impact dependent children who turn 21 during the pendency of the case.  It is expected that all other countries will remain current for the foreseeable future.

On the family side, Mr. Oppenheim reports that the family-based second preference (F-2) (immigrant visa petitions for spouses and children, and unmarried sons and daughters of permanent residents) will see forward movement. He advised that the F-2 category will continue to move about one month per month.  F-4 (siblings of US citizens) continues to be significantly backlogged, with the current wait 12 years and more than 20 years for the Philippines.

Few Appealed L-1A Managerial/Executive Cases are Successful; Review of Appeals for New Office Petitions Reveals Common Fatal Flaws

Monday, November 24th, 2014

A recent review of more than 100 L-1A intracompany transferee petitions in 2013 denied by the USCIS and subsequently appealed administratively reveals that only a handful of cases were ultimately approved. Among petitions for new office extensions, the following are some common fatal flaws cited by the government’s Administration Appeals Office: (1) contradictory evidence in the record, including organizational charts that were inconsistent; (2) managers and executives spending too much time doing the actual work and not managing or directing; (3) lack of evidence of personnel or staff to perform nonqualifying (i.e., nonmanagerial or nonexecutive) duties; (4) vague or overly broad job descriptions; and (5) insufficient evidence to demonstrate how the business will support the manager or executive in the year to come. Many of these same issues derailed initial new-office L-1A petitions. Given that new office L-1A extensions are closely scrutinized as are initial petitions, and request for evidence (RFE) rates have been upwards of 40 percent, employers are advised to carefully prepare and review supporting documentation with these pitfalls in mind.

Administration Promises Fixes to Immigration System in Lieu of Comprehensive Immigration Reform

Monday, November 17th, 2014

The Obama Administration has conceded that comprehensive immigration reform will not be enacted in the foreseeable future and thus has promised to use executive authority through regulatory reform and other mechanisms to address some of the urgent problems facing our immigration system. While the President announced that such measures would be initiated by the end of August, more recently the Administration decided that any executive actions will have to wait until after the November 6 mid-term elections for fear that pro-immigration candidates as well as Democrats in general would be penalized at the polls for his actions.

Under already-existing authority, the President can pursue a number of actions that could help families and businesses that rely on foreign personnel. Some of these measures could include (1) extending DACA relief to parents of those young adults who have already received DACA relief; (2) granting work authorization and “Deferred Action” to undocumented parents of U.S. citizen children; and (3) counting only principal visa applicants against visa quotas (rather than counting both principals and their derivative family members) in an effort to clear up extreme backlogs for green cards that stretch into decades for certain categories.

In a new study released by the American Immigration Council, the authors of Executive Grants of Temporary Immigration Relief, 1956–Present, found that since at least 1956, every U.S. president has granted temporary immigration relief to one or more groups in need of assistance. The publication includes a chart of 39 examples that span actions large and small, taken over many years, sometimes by multiple administrations. Some presidents announced programs while legislation was pending. Other presidents responded to humanitarian crises. Still others made compelling choices to assist individuals in need when the law failed to address their needs or changes in circumstance.

Stay tuned.

Update on Central American Border Crossers

Monday, November 17th, 2014

While the news media has now focused their attention on other news, the plight and circumstances of children and families fleeing violence in Central America continues unabated. Regrettably, the Obama Administration continues to direct its agencies to deport children and families as quickly as possible, making them a priority for speedy proceedings. As of early October, hundreds of women and children have been deported on an expedited basis, and some deportees — even child deportees — have been murdered upon their arrival back home. The Administration’s current detention and removal policies have been widely denounced as both inhumane and unconstitutional, and in violation of our country’s legal and moral obligations under the 1951 Refugee Convention.

 

As previously reported, the American Immigration Lawyers Association, among other groups, has stepped in to provide pro bono legal representation during the last three months, primarily at one of the detention facilities in Artesia, NM.  Attorneys with long histories of representing clients at remote detention facilities have described Artesia as not just the worst situation they have ever encountered, but something far worse than anything they could have imagined.  Their client interviews reveal that hundreds if not thousands of mothers and children have suffered domestic violence, sexual assault, gang violence, and other atrocities protected under U.S. asylum and humanitarian law. Yet, these individuals most likely will be repatriated to their home countries.  Based on hundreds of interviews with detained families that these expert lawyers have conducted, it is clear that the center at Artesia is a due process failure and a humanitarian disaster, and it should be closed immediately.

Meanwhile, the Department of Homeland Security has continued its expansion of family detention, including a new facility in Karnes, Texas, with at least 500 beds, and a planned 2,400-bed facility in Dilley, Texas, expected to open in early November.  The South Texas Family Residential Center will be the fourth facility DHS is using to increase its capacity to detain and expedite the removal of adults with children who illegally crossed the Southwest border. Within months, DHS will be detaining nearly 4,000 mothers and children, a 40-fold increase in the use of detention on immigrant families.

To put the current numbers of unaccompanied minors into perspective, an estimated 60,000 children arrived in FY14; approximately 25,000 arrived in FY13, some 14,000 in FY12, and an average of less than 7,000 a year since 2003. Of the 60,000 unaccompanied minors who entered in FY14, many were placed with family members but those who came with their mothers are generally detained.

News in Brief

Friday, October 31st, 2014

New Director of USCIS Sworn In: On July 9, 2014, Leon Rodriguez was sworn as the director of U.S. Citizenship and Immigration Services (USCIS). Born in Brooklyn, Rodriguez comes to USCIS with a broad legal background and will lead the nearly 18,000-employee agency charged with administering the nation’s immigration system. He previously served as the director of the Office for Civil Rights at the Department of Health and Human Services.

 

Changes to Dates of Birth and Names on Certificates of Citizenship: USCIS has issued policy guidance relating to changes of dates of birth and names per court orders. Recognizing that the dates of birth of children born abroad are not always accurately recorded in the countries in which they were born, and that in some adoption cases, the child’s adoptive parents may obtain evidence of a mistake in the name or date of birth (DOB) reported by the foreign jurisdiction, USCIS will issue an initial, or replacement, Certificate of Citizenship with a new DOB or with a name other than that on a foreign record of birth if a U.S. state court order recognizes the new DOB or orders the legal name change.

 

H-1B Cap Subject Cases Still Pending at USCIS: USCIS reached this fiscal year’s H-1B cap on April 7, 2014. Shortly thereafter the Vermont and California Service Centers (VSC and CSC) began to process, select, review, and adjudicate H-1B petitions for work that will commence on October 1. Some cases have been issued a request for additional evidence (RFE). The VSC reported earlier in the summer that it hoped to adjudicate all H-1B cases still pending due to an RFE by mid-August.

 

Court of Appeals Blocks Arizona’s Ban on Driver’s Licenses for DACA Recipients: The U.S. Court of Appeals for the Ninth Circuit recently held it could identify no legitimate state interest that was rationally related to Arizona’s decision to treat DACA (Deferred Action for Childhood Arrivals) recipients disparately from other noncitizens who are permitted to use their work authorization cards as proof of their authorized presence in the United States when applying for driver’s licenses. Reviewing a district court’s denial of a preliminary injunction, the Ninth Circuit remanded the case back to the lower court with instructions to enter a preliminary injunction prohibiting defendants from enforcing the current policy of the Arizona Department of Transportation to refuse DACA recipients’ EADs as proof of their authorized stay in the United States.

 

DHS Statistics on Who Has Become a Lawful Permanent Resident in FY 2013

Friday, October 24th, 2014

The DHS Office of Immigration Statistics recently issued data on the number and characteristics of persons who became lawful permanent residents (LPRs) during fiscal year 2013.  A total of 990,553 people became LPRs, a decrease of about 4 percent from 2012.  54 percent of new LPRs already lived in the U.S., and the majority, or 66 percent, were granted LPR status based on a family relationship. Mexico, China, and India were leading countries of birth.  Historically, new LPRs have been younger than the native population. This held true in 2013:  the median age for new LPRs was 32 years in contrast to the median age of 35 for the U.S. native population.

 

Foreign Nationals Adjusting Status Based on Employment are Reminded that USCIS Reviews All Status Documentation

Friday, October 17th, 2014

During a recent meeting with USCIS, immigration lawyers questioned why the agency requests all status documents ever issued to an applicant for adjustment if the case is based on employment, when according to long-standing guidance the only relevant periods of being out of status under the immigration laws are those that occurred since the most recent admission. In response, the agency provided several reasons why all of an applicant’s status is reviewed. The main reason is to look for inadmissibility due to unlawful-presence, previous periods of unlawful presence that may trigger one of the bars (three years for 180 days of unlawful presence and 10 years for one year or more of unlawful presence). For example, an individual who overstayed his or her previous visa status for a year or more would be ineligible to adjust status for 10 years, unless eligible for a waiver. Another example given when an applicant’s full nonimmigrant visa status history is relevant relates to J-1 exchange visitors who may be subject to the two-year home residency requirement, unless waived. USCIS also states that because adjustment of status is a discretionary benefit, previous violations of status or overstays can be weighed as a negative factor when adjudicating the adjustment application even though status from the last lawful admission forward is the critical portion that is examined.

DOS Practice Alert: Technical Problems with Passport/Visa System Resolved

Monday, October 13th, 2014

The Department of State’s Bureau of Consular Affairs reported in late July that it was experiencing technical problems with its passport/visa system and that visa and other applicants would experience delays and in some instances would be unable to obtain a passport, Consular Report of Birth Abroad, or visa. DOS has since made significant progress and reports that it has issued most of the worldwide backlog of nonimmigrant visa cases and is printing visas for these cases and all cases with very few delays. Immigrant visas, adoption cases, and emergency nonimmigrant visa cases continue to be prioritized. Clients are advised to check with the appropriate embassy or consulate for additional information.

Ebola Outbreak–related Immigration Relief Measures Available for Nationals of Guinea, Liberia and Sierra Leone Currently in the United States

Friday, October 10th, 2014

USCIS reports that it is closely monitoring the Ebola outbreak in West Africa, and is offering relief measures to nationals of Guinea, Liberia, and Sierra Leone who are currently in the United States. These measures include:

 

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Consideration for waiver of fees associated with USCIS benefit applications.

 

These accommodations must be requested by the national.

Asylum Claim Denials on the Rise

Monday, October 6th, 2014

In its newest report, the Transactional Records Access Clearinghouse (TRAC) finds that the odds of an asylum claim being denied in immigration court has risen to 50.2 percent during the first nine months of 2014. After reaching a historic low of only 44.5 percent of cases denied two years ago (FY 2012), the denial rate has been on the rise. However, put in a historical context, ten years ago almost two out of three individuals seeking asylum lost their cases. Meanwhile, the immigration courts are tremendously backlogged, with some 350,000 cases pending, and that was before the recent influx of immigrants from Central America. During 2013, 20,941 cases were decided by immigration judges, while ten years earlier, 70 percent more cases, or 35,782, were decided.  FY2014 portends to be no better than FY2013.