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On Tuesday, November 29, 2011, the House of Representatives passed a bill  that would eliminate the limits on the number of green cards based on employment that is available annually to each country.  The “Fairness for High-Skilled Immigrants Act” (HR 3012) passed easily with a vote of 389 to 15 and will mostly benefit highly skilled immigrants from India and China. It would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants and increase the per-country numerical limitation for family-sponsored immigrants. 

The bill tweaks the visa system to allow more highly skilled immigrants from India and China to become legal permanent residents.  Because demand is highest for advanced degree holders from India and China, the per-country cap has meant delays for residents of those two nations of at least four years for a green card. By contrast, people from most other countries with advanced degrees have little wait.

Currently, 140,000 green cards are available each year for immigrants based on their job skills, with each country limited to 7 percent of those visas.  Under the bill, after a three year transition, all employment based green cards will be issued on a first-come-first-served basis, with no country limits.

The legislation also includes a measure that will more than double the green cards based on family ties available for Mexicans and Filipinos, the two national groups facing the longest backlogs on the family side of the system.  It raises the country limit of 226,000 family green cards each year to 15 percent from the current 7 percent.

The main beneficiaries of the bill will be individuals who are highly skilled immigrants from India and China, including many with master’s degrees and doctorates in science and engineering.  These countries send many people to work here who have advanced science and technology skills.  In most cases, individuals from these two countries will receive their permanent green cards quicker, having worked in the US for years on a temporary visa, such as H-1B, L-1, etc. 

Backers of the bill estimate that green cards for STEM grads will lead to about 50,000 new green cards a year, about half for the STEM graduate and the remainder for family members. Opponents say that estimate may under count the actual impact.

Currently, Senator Grassley has put a hold on the bill in the Senate and so, it remains to be seen what the final outcome will be.  However, we remain very optimistic.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.” This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.

“This initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” said Director Mayorkas. “The introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather high-level strategic input. Informed by the summits, the agency will stand up a tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions. This initiative will strengthen USCIS’s collaboration with industries, at the policy, training, and officer level, while complying with all current Federal statutes and regulations.

The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS is:

  • Conducting a review of the EB-5 process;
  • Working with business analysts to enhance the EB-5 adjudication process;
  • Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
  • Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.

For more information on USCIS and its programs, please visit www.uscis.gov.

USCIS reminds eligible widow(er)s that October 28, 2011 is the deadline for filing a Form I-360 visa petition.  If you are the widow(er) of a U.S. citizen who died before October 28, 2009 you may be eligible to immigrate to the United States if: 

  • You and your deceased spouse were married for less than 2 years when your spouse died and  
  • You file Form I-360 for Special immigrant classification as a widow/widower by October 28, 2011. See section 568(c) of Public Law 111-83 for more information.

USCIS must receive your Form I-360 by October 28, 2011.  Since you must file Form I-360 by mail or overnight courier, please be sure to ship it in time for USCIS to receive it no later than October 28, 2011.

By way of background, on October 28, 2009, the President signed the FY2010 DHS Appropriations Act into law, allowing eligible widows or widowers of U.S. citizens to qualify for permanent resident status regardless of how long the couple was married. The law amended the Immigration and Nationality Act (INA) by removing the two-year marriage requirement previously necessary for a widow(er) to qualify for permanent resident status as an immediate relative of his or her late U.S. citizen spouse.

Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. The law applies equally to widow(er)s living abroad, who are seeking immigrant visas and widow(er)s in the United States, who want to become permanent residents based on their marriage. These provisions of the FY2010 DHS Appropriations Act relate only to the impact of the citizen’s death on a widow(er)’s eligibility for classification as an immediate relative. All other requirements for approval of a visa petition remain in force. Specifically, the widow(er) must still establish that:

  • He or she was the citizen’s legal spouse.
  • The marriage was bona fide and not an arrangement solely to confer immigration benefits to the beneficiary.
  • He or she has not remarried.
  • He or she is admissible as an immigrant.
  • In an adjustment of status case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise of discretion.

Courtesy USCIS.gov

Despite the hard economic times that we are still encountering, US immigration continues to flourish.  Immigrating to the United States to live here permanently is an important and complex decision.  In general, to immigrate to the US a foreign citizen must be petitioned or sponsored by a U.S. citizen relative(s), U.S. lawful permanent resident, or by a prospective employer, and be the beneficiary of an approved petition.  Thereafter, the beneficiary must wait the required amount of time. If the sponsor is a U.S. citizen spouse or employer, the beneficiary will have to wait only for the paperwork to be completed. If the sponsor is another relative, then they will have to wait in line for their priority date to become current. Each year, the demand for immigrant visa numbers for family based and employment based sponsorships far exceeds the supply.  This has resulted in massive backlogs with immigrants waiting years and even decades for their priority date (their place in line) to become available. 

For many years, USCIS had taken the position that the law did not permit the beneficiary of a visa petition to obtain approval of the petition if the petitioner died while the petition remained pending.   In those cases, USCIS automatically revokes the immigrant visa petition, leaving surviving family members with no means to obtain immigrant status based on that petition. 

On October 28, 2009, President Obama passed into law Congress’ landmark immigration bill, ending the automatic revocation of a visa petition when the petitioner dies.  This has provided significant relief to immigrants and their families who have waiting for their priority dates to become current only to have the petition revoked upon the death of the petitioner. 

The new law changes the governing regulations with respect to an alien who is seeking an immigration benefit through a deceased “qualifying relative.” Specifically, under this new law, surviving family members residing in the US at the time the petitioner or principal beneficiary died, may adjust status to permanent residence when their priority date is reached, as long as they continue to reside in the US.  This includes the continued processing of the immigrant visa application for the spouse of the US citizen or the unmarried child under age of 21 of a US citizen, even if the US citizen petitioner dies while the immigrant visa petition is pending or has been approved.  Previously, if the US citizen died before the petition was approved or permanent resident status granted, the spouse or child would be unable to obtain a green card. 

This option is also available for spouses and unmarried children of permanent residents, unmarried children over the age of 21 of US citizens, married children of a US citizen, brothers and sisters of US citizens and the derivative children as well as derivative beneficiaries of pending or approved employment based immigrant visa petitions. 

Note:  this relief does not provide benefit to family members residing outside of the US.

On June 14, 2011, Rep Zoe Lofgren (D-CA) introduced the . The IDEA Act would allow American companies to attract and retain highly skilled foreign graduates of American universities in the Science, Technology, Engineering and Math fields, commonly referred to as STEM fields.  The Act would also create a new green card category for entrepreneurs who form new startups as well as reform the current H-1B and L-1B visa programs. 

The primary provisions of the IDEA Act would:

  • Help American companies attract and retain the best and the brightest workers by empowering them to seek green cards for advanced degree graduates in STEM fields from the most distinguished American universities.
  • Allow foreign students to have “dual intent”, which means they could pursue a green card within the need to transition to a temporary work visa.
  • Permit certain undocumented students who are enrolled in a full course of study to apply for temporary student visas if they initially entered the US at 15 years of age or younger.
  • Attract new businesses by awarding green cards to entrepreneurs with significant venture capital funding who agree to open their start-ups in the US.
  • Fix our employment-based immigration system by recapturing unused green cards, eliminating backlogs and streamlining regulatory hurdles.  The bill would exempt spouses and minor children of employment-based immigrants from the annual numerical limit.

Upon introducing the bill,  the Congresswoman said, “it makes no sense for us to educate the world’s brightest students and then ship them back to their home countries to compete against us. My bill would allow some of the world’s sharpest minds to stay in the United States and help us grow our economy.”

Under the current immigration rules, an foreign born individual who has entered on an F-1 status has to obtain some form of work authorization/visa  to allow them to work in the United States.  This is generally through an H-1B status/visa. While this will permit an employee to work in the United States, it impedes that employee’s ability to advance in the company, restricts the employee’s spouse from working and otherwise limits the options available to the employee.

The IDEA Act calls for green cards to be available to foreign born students who graduate with an advanced degree in a STEM field from a U.S. university, if that person has a relevant job offer from a U.S. company. It further reduces the green card backlog by recapturing visas that were issued in previous years in other categories but were never used.  It also eliminates arbitrary caps in the current system that restricts the number of employment based visas that can be awarded to citizens of any one country in a given year.

Recently, in a letter addressed to the Secretary of State, Hillary Clinton and Department of Homeland Security Secretary, Janet Napolitano, Senator Grassley (R-IA) expressed concerns over allegations of misuse of the B-1 business visitor visa and requested “a thorough review” of the B-1 in lieu of the H-1B provisions in the Foreign Affairs Manual.

This letter was triggered because of a complaint filed by an employee of Infosys Technologies, Inc. (Infosys) alleging that his employer was “sending lower level and unskilled foreigners to the United States to work in full time positions at Infosys’ customer sites in direct violation of immigration laws.”  The employee was apparently describing ways that Infosys was using to get around the H-1B visa program to bring in low-skilled and low-wage earners resulting in visa fraud against the US government. 

The employee’s complaint provided details about how Infosys India was using the B-1 business visitor program to get around H-1B program requirements.  The employee alleged that Infosys was using the B-1 program on the ground that the foreign employees  were  coming into the US to attend meetings.  The employee alleged that in reality, these employees were actually working for a US company and earning a wage that was below the prevailing wage that is required by the H-1B regulations.

Senator Grassley urged Secretary of State and Department of Homeland Security to investigate and get to the bottom of the situation.  He requested information about how the B-1 program is currently being used by US employers and processed by consular officers.  He requested several items, including, how the Department of State verifies an employer’s claim that a B-1 visa holder is indeed attending a meeting in the US.   Senator Grassley was also interested in finding out what actions, if any, against employers who abuse the B-1 program.   More importantly, Senator Grassley has requested the legal basis for the State departments policy known as “B-1 in lieu of H-1B”.  Senator Grassley was proposing that changes to the Foreign Affairs Manual be considered so that this means of entry is not abused.  Grassley went on in his letter to ascertain whether the Department would consider eliminating this provision altogether.

Given the concerns expressed by Senator Grassley we are not surprised to note that increasingly the US Consulate in India has been rejecting the B-1 applications at an alarming rate.  It is just unfortunate that the misuse of the process by one or two companies has resulted in a proposed elimination of the provision which is very critical for companies that are competing in the global marketplace.

To be eligible for entry to the US or to apply for a green card, an applicant must be able to prove that they have enough financial support to visit or live in the US without concern of becoming reliant on US government welfare, that is, to become a public charge.  This requirement has gone back more than 100 years as part of the US immigration laws. 

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits.  Some noncitizens and their families are eligible for public benefits–including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs–without being found to be a public charge.  We are often asked what qualifies as a public charge and what sort of assistance would make an individual inadmissible? 

In determining inadmissibility, USCIS defines “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”  In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills.  No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge. 

Programs that are likely to be viewed as those which would make a noncitizen inadmissible as a public charge include:

  • Cash assistance for income maintenance through Supplemental Security Income (SSI)
  • Cash assistance from the Temporary Assistance for Needy Families (TANF) program
  • State or local cash assistance programs for income maintenance

 

Each of the above are often called “general assistance” programs and acceptance of public cash from these sort of programs could make a noncitizen inadmissible.  However, the mere receipt of these benefits do not automatically make an individual inadmissible, or ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.  USCIS will make a determination on a case-by-case basis and will review it in the context of the totality of the circumstance. 

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care (nursing home, mental health institute), may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determination. 

The following non-cash benefits and special-purpose cash benefits (that are not intended for income maintenance) are not subject to public charge consideration:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program
  • Nutritional programs, including the Supplemental Nutrition Assistance Program (SNAP), which is commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), National School Lunch and School Breakfast Program, and any other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
  • Job training programs
  • In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention and short-term shelter)
  • Non-cash benefits under TANF such as subsidized child care or transit subsidies
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
  • Unemployment compensation

 

It should be noted, that in general, lawful permanent residents who possess a “green card” cannot be denied US citizenship for lawfully receiving any public benefits for which they are eligible.

In a recent decision before the US Federal District court in Connecticut, the judge confirmed that the government may not arrest H-1B employees whose employers have timely-filed extension applications while adjudication remains pending. The decision in El Badrawi v. United States recognizes that a federal regulation allows an H-1B employee to continue to work for 240 days beyond the validity date of their H-1B status pending adjudication of their extension application. The court determined that “work authorization is part and parcel of their authorization to be in the country, not a separate matter”. According to the decision, allowing the Government to initiate removal proceedings during this period would be unfair to employees and employers alike.

The plaintiff, a Lebanese national, was gainfully employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months.

In their amicus brief, AIC and AILA argued that 8 C.F.R. § 274a.12(b)(20), which provides for work authorization while a timely-filed extension application is pending, necessarily authorizes H-1B employees to remain in the United States. Accordingly, they cannot be arrested solely for staying in the country while extension applications are being adjudicated. With supporting declarations from three companies that rely on H-1B workers, the brief argued that arresting noncitizens with pending extension applications would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.

In her decision, Judge Hall said the AIC-AILA brief “highlights the substantial interest that employers have in the administration of the H-1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them.”

Judge Hall’s ruling is a victory for the rule of law and for common sense,” said Melissa Crow, Director of the American Immigration Council’s Legal Action Center. “If H-1B employees can continue working while extension applications on their behalf are pending, it defies logic to argue that they can be arrested, detained and removed without notice.”

Courtesy of American Immigration Lawyers Association (AILA) and American Immigration Council (AIC).

Beginning April 9 2011, if a federal budget is not passed by Congress and accepted by the White House, a government shutdown may happen, which may have an impact on many government services including visa, tourism, immigration etc:

- Visa and passport services.
- National parks / zoos / museums or any other parks and facilities operated by the government can be closed or affected.
- Immigration services, including USCIS services.
- Washington, DC city has greater impact due to the fact that it has large number of museums, parks, and monuments.

    In the event the shutdown lasts for more than few days, it may have adverse effect on visa, immigration, and passport services. People are advised to stay tuned for the latest news and be informed before making any travel plan. People who have visa, passport appointments during this time should confirm before making any travel arrangements.

    Essential govt services like Air Traffic Control, Transportation Security (TSA), Law Enforcement , Border Protection, will continue uninterrupted. Travel to and from USA, and travel within USA is likely to continue uninterrupted.

    Note: Keep checking the news.

    A recent update from USCIS and Charles Oppenheim at the Department of State indicated the EB-2 cutoff dates will advance, perhaps substantially, in May 2011. In an informational meeting with the American Immigration Lawyers Association (AILA), Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, advised that there has been a dramatic reduction in the use of EB-1 numbers. EB-1 is typically used by individuals of extraordinary ability, outstanding professor or researcher or are a multinational executive or manager. As a result, the planned visa number demand in this category can be adjusted downward. By doing this, the unused EB-1 numbers can be allocated to other categories. Mr. Oppenheim stated:

    “[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

    Mr. Oppenheim stated that the demand for EB-1 numbers started to diminish beginning in October 2010. Therefore, it is expected that the EB-2 category will move forward in the May 2011 Visa Bulletin. It would appear that this will affect primarily individuals from India and China. This recent news comes as a boon to those individuals who have been waiting for months without any movement in this category. While we cannot estimate how much the EB-2 priority date for India or China will advance, we certainly hope that it will move by a substantial amount, based on the 12,000 available visa numbers mentioned by Mr. Oppenheim.

    With the EB-2 numbers moving forward, this will in turn cause an increase in I-485 adjustment of status filings for both the primary beneficiary or for their family members who have not been able to file the I-485 previously. Please contact our office if we can help you prepare and file your I-485 application or if you need assistance with interfiling your pending I-485 to a new and (soon to be) current EB-2 I-140.