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Why do I have to wait so long to be with my U.S. Spouse?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I just married my U.S. Citizen husband in my home country. I thought I could just go to the United States and live with him. However, I found out it is actually is going to take over one year to get back together with my husband. I am heartbroken. Is there anything I can do to speed up this process?

Answer: Yes. There is what is known as a K-Nonimmigrant as the Spouse or Child of a U.S. Citizen? The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to have permission for employment while they await processing of their case to permanent resident status.

Question: Who is Eligible?

A person may receive a K-3 visa if that person: has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse for the person; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status, and, has an approved Form I-129F, Petition for Alien Fiancé, forwarded to the American consulate abroad where the alien wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is the one with jurisdiction over the current residence of the alien spouse.

Question: Will I Get a Work Permit?

Answer: Persons in K-3 or K-4 status and applicants for adjustment to permanent resident status from K-3 or K-4 are eligible to apply for a work permit while their cases are pending.

Question: Can I Travel Outside the United States?

Answer: If you are in K-3 or K-4 status, you may travel using your unexpired K-3/K-4 nonimmigrant visa to travel outside of the United States and return, even if you are applying for adjustment of status simultaneously.

Filed under: Family Petition, Immigration Law, K-3, Nonimmigrant Visa, USCIS | Tagged: , | 1 Comment »

Will I be locked up forever?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I am writing from the immigration detention facility. I have had my Green Card for many years, but committed a crime many years ago. After trying to become a U.S. Citizen, they not only denied my application, but put me in detention and deportation. I have heard that there is no way I can be bonded out during the proceedings. Is this true?

Answer: Partially. The United States Supreme Court recently decided a case known as the Kim case. The Court held that the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community. The INA lists broad categories of noncitizens that are subject to mandatory detention based on their removability under specific criminal provisions.

After the Court announced its decision, the Bureau of Immigration and Customs Enforcement (BICE) issued a memorandum saying that all persons subject to Kim would receive letters within six months asking them to report for an interview. BICE said it would re-detain individuals who had previously been released after a bond hearing, but who now fall within the mandatory detention provisions.

Question: Is there anyway around the Kim case?

Answer: There may be. The first step in analyzing any mandatory detention case is to determine whether the Kim case even applies. Only individuals who were released from criminal custody after October 8, 1998 are subject to mandatory detention. Thus, if you were released from custody before that time, you are not subject to the mandatory detention.

Also, it can be argued that only individuals who are taken into custody immediately upon their release from criminal incarceration fall within the confines of this case.

Assuming this cannot be argued, a “Joseph hearing” needs to be conducted. A Green Card holder is not “properly included” within a mandatory detention category if the “Service is substantially unlikely to establish at the merits hearing, or on appeal, the charges that would otherwise subject the alien to mandatory detention.” Individuals who prevail at the Joseph hearing are entitled to have a bond hearing.

For example, if the person is charged with removability based on convictions for two crimes involving moral turpitude, consider whether there are possible challenges to (1) the existence of the convictions, and (2) the classification of the crimes as crimes involving moral turpitude. In Matter of Joseph, the BIA concluded that it was substantially unlikely that INS would succeed because Joseph’s conviction was not correctly classified as an aggravated felony. Although Matter of Joseph addressed only the situation where the conviction was wrongly classified as a crime that would trigger mandatory detention, in thinking about whether there is a conviction, take account of the availability of post-conviction relief.

Question: Assuming I cannot prevail at the Joseph Hearing, is there anything else I can do?

Answer: You can bring actions in the U.S. Federal District Courts challenging the mandatory detention. Such factors to bring the attention of the Judge will be the length of the detention and removal from the United States is unlikely. Also, the Supreme Court’s decision was premised on the finding that Kim conceded removability. Individuals intending to challenge removability should state clearly this intention at both the immigration court and in any habeas corpus actions. Cases where the person is challenging deportability may be distinguished from Kim on that basis.

At this point, it will be difficult, but we must continue to argue and fight for the rights of people who are subject to mandatory detention.

 

Filed under: Deportation, Detention, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

PERM: Am I an ‘Arriving Alien’?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am married to a U.S. Citizen and just entered the U.S. Unfortunately, I have a crime in my past. The Immigration Judge denied my case and stated that because I was an arriving alien that I do not qualify to adjust my status in the U.S. Is this true?

Answer: Actually, in a majority of the U.S. you would not be eligible to adjust status to that of a Lawful Permanent Resident because you are considered to be an arriving alien. This is when a person basically enters the U.S. and is immediately put into deportation or removal proceedings. However, there was issued just recently a decision in the First Circuit Court of appeal a case that deals with this very issue. This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c) (8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status (permitted to enter the U.S.) but have been placed in removal proceedings.

Question: What was the reasoning of the court?

Answer: First, 8 U.S.C. Section 1255 specifically states who is eligible to adjust status. Previously, in 1997, the Attorney General carved out an exception to this (through implementing new regulations) that arriving aliens are not eligible to apply. First, the actual code 8 U.S.C. Section 1255 (made by Congress and signed by the President) specifically permits persons whom are paroled into the U.S. (and therefore an arriving alien) to adjust status in the U.S. Therefore, the actual Immigration and Nationality Act is not silent on the issue to which the Attorney General made the regulation.

Next, the Court ruled that Congress has specifically stated where the Attorney General had the authority to issue discretionary decisions as to eligibility for adjustment of status. Here, there was no authority given to the Attorney General (John Ashcroft at the time) to issue such a decision to bar people from adjusting status when the Immigration and Nationality Act specifically permitted those people to adjust. Basically, Congressional intent in making the policies of who can adjust status takes precedence over what the Attorney General thought that he could do.

Question: So, what was the final outcome?

Answer: The First Circuit Court of Appeals sent the case back down to the Immigration Court for Adjustment of Status proceedings after ruling that the regulation promulgated by the Attorney General making arriving aliens (or those paroled into the U.S.) ineligible for adjustment proceedings unconstitutional.

Question: Does this rule apply all over the U.S.?

Answer: Unfortunately, it does not. It only applies if you happen to be living in the 1st Circuit. This would be in the Northeastern part of the U.S. Thus, in all other areas of the U.S. an arriving alien cannot adjust status in removal proceedings. However, this ruling from the First Circuit is very powerful and can be used to convince the Immigration Judge to permit such an adjustment. If he/she does not, you can take it up on appeal to the Board of Immigration Appeals. After, if you lose, you can appeal this up to the Circuit Courts of Appeal in your jurisdiction. Finally, if you lose there, take it all the way up to the U.S. Supreme Court.

Filed under: Immigration Law, immigration provisions, Removal Proceedings, USCIS, Visa | Tagged: , | Leave a comment »

What help can people get from Hurricane Katrina?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have many friends who are not U.S. Citizens who were displaced by Hurricane Katrina. What is happening with their families and petitions?

Answer: First, it is necessary to determine the physical status of USCIS facilities in the affected area.

On Friday, September 2, 2005, USCIS surveyed the status of the USCIS District Office in New Orleans (NOL) at 701 Loyola Avenue. There was no window damage, no water damage, and the office was secure. It appears that nothing was disrupted, and the files and security items are safe. Two USCIS employees in the affected region remain unaccounted for. All other USCIS facilities in the Gulf Coast Region are secure.

Due to the high volume of displaced persons, ALL USCIS offices will be assisting hurricane victims in any way possible.

The New Orleans District Director is conducting business from the USCIS Sub-office at 1341 Sycamore View Road in Memphis, Tennessee. The Continuity of Operations (COOP) site for NOL is the ASC facility at 100 West Capitol Street in Jackson, Mississippi. The COOP site in Jackson is open for business and will be staffed by NOL personnel in the coming days.

Question: Where are the NOL office files going to be centralized?

Answer: Planning is underway to centralize the files from the NOL district office. However, it may be sometime before USCIS will be able to enter the NOL office to remove and relocate files.

Question: Has USCIS cancelled naturalization ceremonies in the affected areas?

Answer: All naturalization ceremonies in the affected areas have been cancelled until further notice and will be rescheduled. Customers with pending appointments for naturalization interviews and adjustment of status interviews will be contacted as soon as information becomes available.

Question: Are there plans to shift jurisdiction for customers from the New Orleans District?

Answer: It will be necessary to shift jurisdiction for customers from the New Orleans office to other local offices throughout the country. USCIS Regional Directors are working together to develop a plan that maintains the commitment to customer service and efficiency. Operational activities continue in Fort Smith, Arkansas, Memphis, Tennessee, and now, Jackson, Mississippi.

Question: How do affected customers go about replacing lost immigration documentation?

Answer: All USCIS field offices will be prepared to assist hurricane victims in any way possible and work to replace official documentation while adhering to security policies and procedures. USCIS will verify the identity and immigration status of all customers before re-issuing any immigration related document. Such verification can be achieved by using their electronic systems.

Question: What steps is USCIS taking to facilitate the deployment of relief workers from abroad?

Answer: USCIS is working closely with officials at the Department of Homeland Security (DHS) to consider options to parole certain foreign skilled technicians, i.e. electricians, general contractors, construction and recovery specialists. Under these regulations, the new parolees will need to apply for an Employment Authorization Document since the activity is considered employment in the United States.

Question: How will USCIS handle foreign students who will not be able to maintain continuous enrollment in affected universities?

Answer: The Student and Exchange Visitor Program (SEVP), housed at the Immigration and Customs Enforcement (ICE), is in the process of issuing guidance to students and schools, addressing individual scenarios.

There is still a need to help these displaced immigrants. Therefore, if you have anything to give to Red Cross to help, please do so.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling  (866) 495-0554  or  (562) 495-0554 . The Firm website is www.californiaimmigration.us.

Filed under: Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | Leave a comment »

H-2B’s: There back!

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I had petitioned for temporary workers earlier, but was told all H-2B’s were used up. Is there anything that can be done? I really need these workers.

Answer: Yes, beginning May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) will begin to accept additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005.

Question: Who will benefit from this Act?

Answer: The Act allows USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately: 1. For fiscal year 2005: Approximately 35,000 workers, who are new H-2B workers or who are not certified as returning workers, seeking work start dates before October 1, 2005.

2. For FY 2005 and 2006: All “returning workers,” meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means: In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004. In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005. If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Question: What is needed to file for the H-2B’s under this Act?

Answer: Petition forms and processing will follow current rules, with these additional requirements for “returning workers:” The petition must include a certification from the petitioner (employer) signed by the same person who signed the Form I-129 stating, “As a supplement to the certification made on the attached Form I-129, I further certify that the workers listed below have entered the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.” The list must set forth the full name of the worker. If the petition seeks change of status of the worker within the United States, it must include evidence of previous H-2B admissions, such as a visa or a copy of I-94 admission document.

A single petition may benefit more than one worker, including unnamed workers in “special filing situations” for business reasons. However, any returning workers must be listed in a certification as described above. For multiple named workers, including returning workers, “Attachment 1” to Form I-129 must be included and completed.

A petition approval notice will list any returning workers, who must be prepared to show to the U.S. consulate (when requesting an H-2B visa) or CBP port inspector (if visa exempt) proof of the worker’s previous H-2B admissions, such as a visa or a copy of I-94 admission document. The State Department will confirm prior visas through its electronic system, and that alone may be sufficient, but failure to show these documents may result in denial of visa or admission.

Thus, because of the limited number of H-2B’s, you should file right away.

Filed under: H-2B, Immigration Law, immigration provisions, Temporary Workers, USCIS | Tagged: , | Leave a comment »

New L1-B Provisions

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My employer has a business in my home country and wants to send me to the United States to work in a branch office he is opening up. However, it would require that I work at different locations in the U.S. Is there a problem with doing this?

Answer: Since you will not actually be running the company, but rather, worker as a person who has specialized knowledge of the products of your company, you would fall under the L-1B category. Previously, there might not have been a problem. However, a new law regarding L-1B’s has just come into effect. The USCIS has just implemented the L-1 Visa Reform Act of 2004. The changes were mandated by L-1 Visa Reform Act of 2004 which became law last December as part of the Omnibus Appropriations Act for FY 2005. The L-1 Visa Reform Act amends previous legislation to address the “outsourcing” of L-1B temporary workers. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

Question: What are the changes mandated by this law?

Answer: L-1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer. USCIS will interpret the “control and supervision” provisions of the new law to require an L-1B petitioning employer to retain ultimate authority over the worker. The determination as to whether an alien is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L-1B temporary worker must have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests, as defined under current USCIS regulations. General skills or duties that relate to ordinary business or work activities would not meet the test of whether specialized knowledge is required for the work.

Question: Therefore, what exactly is meant by this outsourcing provision?

Answer: The “outsourcing” provisions described above apply to all L-1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving individuals currently in L-1 status. The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected by this new provision.

Question: Are the filing fees the same?

Answer: No. As with other applications, there is now a fraud related fee. There is the base filing fee of $185.00 plus the new $500.00 Fraud Prevention and Detection Fee as applicable. [Employers seeking a worker’s initial grant of H-1B or L nonimmigrant classification and employers seeking to hire an existing H-1B or L worker currently employed by another employer must pay the $500 Fraud Prevention and Detection Fee. The $500 fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Therefore, while there are changes, the L-1B still exists and you should go forward with the application assuming you qualify.

Filed under: Immigration Law, immigration provisions, L-1B Provisions, Temporary Workers, USCIS | Tagged: , | Leave a comment »

PERM: The REAL ID Act.

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a great deal about the new REAL ID Act. Can you summarize its provisions.

Answer: On May 11, 2005, President Bush signed Public Law 109-13, which included provisions of the REAL ID Act of 2005. This new measure provides for significant changes to existing immigration laws.

Sec. 101: Tightens evidentiary standards and burdens of proof for applicants for asylum and for relief or protection from removal. Removes entirely the annual limitations of 10,000 adjustments of asylees to lawful permanent resident status and of 1,000 grants of asylum or refugee status to persons resisting coercive population control methods. Clarifies that judicial review limitation in section 242(a)(2)(B) of the INA is applicable to USCIS discretionary decisions not necessarily arising from removal proceedings (this change appears in sec. 101 but is more closely related to the subject matter of sec. 106).

Sec. 103: Significantly amends and expands the terrorism-based grounds of inadmissibility in section 212(a)(3)(B) of the Immigration and Nationality Act, particularly with respect to membership, representation, endorsement or espousal, military-type training, material support, solicitation, and the definition of a terrorist organization.

Sec. 104: Provides a discretionary exception to inadmissibility for certain aliens who have endorsed or espoused, materially supported, or been a representative of a terrorist organization, and to the definition of certain groups as terrorist organizations, to be exercised by DHS or DOS in consultation with each other and DOJ.

Sec. 105: Significantly expands the terrorism-based ground of deportability in section 237(a)(4)(B) of the Immigration and Nationality Act to cover any alien described in the terrorism-based grounds of inadmissibility at section 212(a)(3)(B).

Sec. 106: Limits judicial review of removable orders, especially review in the district courts arising out of habeas corpus claims.

Secs. 201-07: Requirements that States must meet for their drivers’ licenses to be accepted for Federal purposes (such as boarding commercial aircraft or entering Federal buildings) will phase in and fully apply in three years. These requirements include verification of the citizenship or lawful immigration status of drivers’ license applicants (through the SAVE system in the case of aliens), the issuance of temporary drivers’ licenses valid only during the period of lawful stay in the United States to certain categories of aliens, and marking of nonconforming licenses to be recognizable as unacceptable for Federal purposes.

Secs. 301-03: Studies, pilot programs and communications integration with respect to border security.

Secs. 401-07: The “Save Our Small and Seasonal Businesses Act of 2005” contains a number of provisions intended to provide additional temporary or seasonal workers under the H-2B nonimmigrant category and otherwise to modify the H-2B program. These provisions include: A new exception for fiscal years 2005 and 2006 from the H-2B limitation of 66,000 per fiscal year for “returning workers” who have already been counted toward that limitation in any one of the previous three fiscal years, a new fraud prevention and detection fee of $150 for H-2B petitions for fiscal year 2006 and after, with the receipts to divided between the Departments of State, Labor and Homeland Security for antifraud activities; civil penalty and petition debarment authority for misrepresentations in H-2B petitions; a new division of the 66,000 H-2B limitation into semiannual limitations of 33,000 in order to provide H-2B workers for employers petitioning for the second half of the year; reporting requirements; and a discretionary exemption from certain statutory procedural requirements in order to ensure quick implementation (the “returning worker” provisions and the new fee are to implemented within 14 days of enactment).

Sec. 501: Provides up to 10,000 “specialty occupation” nonimmigrant admissions in new E-3 classification for nationals of Australia (similar to provisions previously enacted in free trade agreement implementing legislation relating to H-1B workers from Singapore and Chile).

Sec. 502: Provides for up to 50,000 employment-based immigrant visas authorized but unused in fiscal years 2001-04 to be available to employment-based immigrants described in the Department of Labor’s “Schedule A” (primarily, but not exclusively, nurses), and their accompanying family members.

Filed under: Immigration Law, immigration provisions, REAL ID Act, Specialty Occupation, USCIS | Tagged: , | Leave a comment »

What is the Prevailing Wage?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am applying for the new PERM, but am having a very difficult time figuring out what is the prevailing wage and how to figure out what level it is. Can you please explain?

Answer: There are four levels to any job. Level 1 (entry) is for beginning level employees who have a basic understanding of the occupation. They perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

Level 2 (qualified) wage rates are assigned to job offers for qualified employees who have attained – either through education or experience – a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. A Level 2 wage determination would be a requirement for years of education and/or experience

Level 3 (experienced) wages are for job offers for experienced employees who have a sound understanding of the occupation and have attained either through education or experience special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff.

Level 4 (fully competent) wage rates are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

Question: Does the amount of the prevailing wage change with the level it is at.

Answer: Most definitively. The higher the level, the higher the wage. This new system is preferable to the older system which had only two levels which were no experience and expert. Here, we have a more realistic way of assessing the experience so that someone with some experience will not have a wage that is much higher than their actual experience.

Filed under: Immigration Law, immigration provisions, PERM, Prevailing Wage, USCIS | Tagged: , | 1 Comment »

Retrogression: What it really means.

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Perm Labor Certification that only took 3 months to get. However, now I am being told it will take years to actually get the Green Card. I am being told there is a “Quota Backlog” or “Retrogression“. What does this mean?

Answer: The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date.” The priority date is the single, most important, factor in any immigration case.

Question: What are the EB categories of employment based visas?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor’s degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

Other Workers includes positions that require less than two years of experience.

Question: What is the “Priority Date”?

Answer: If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being “current.” The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin.

Question: Is there anyway I can expedite the process?

Answer: There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

Question: What does it mean to be “current”?

Answer: If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

Question: my spouse was born in a different country than I as. Since the I-485 is based on my employment, does my spouse’s country of birth help me?

Answer: Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

Filed under: Immigration Law, immigration provisions, PERM, Retrogression, USCIS | Tagged: , | Leave a comment »

What new Bills are on the Horizon?

Posted on December 16, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there are a large number of new immigration bills that are in Congress. Can you give a summary?

Answer: Yes, there are a significant number of bills. Whether they actually become law will only be determined by time. However, it does appear that there should be a significant number of changes in the coming year. Below are just a few of the bills introduced.

The Uniting American Families Act or the Permanent Partners Immigration Act: Introduced on June 21 by Senator Patrick Leahy (D-VT), S. 1278 would provide a mechanism for U.S. citizens and lawful permanent residents to sponsor their permanent partners for residence in the United States. S. 1278 defines the term “permanent partner” to mean an individual 18 years of age or older who (a) is in a committed, intimate relationship with another individual 18 years of age or older in which both parties intend a lifelong commitment; (b) is financially interdependent with that other individual; (c) is not married to or in a permanent partnership with anyone other than that other individual; (d) is unable to contract with that other individual a marriage cognizable under the INA; and (e) is not a first, second, or third degree blood relation of that other individual. The bill is companion legislation to H.R. 3006 below.

The Unaccompanied Alien Child Protection Act of 2005: Introduced on January 24, 2005, by Senator Dianne Feinstein (D-CA), S. 119 would build upon the Homeland Security Act, which transferred the care and custody of unaccompanied alien children from the former INS to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Among other things, the bill would ensure that unaccompanied alien children have access to counsel; give ORR the authority to provide guardians to such children; establish minimum standards for the care and custody of unaccompanied alien minors; and strengthen policies for permanent protection of unaccompanied alien children. The bill is similar to legislation that Senator Feinstein introduced in the 108th Congress.

The Civil Liberties Restoration Act: Introduced on April 6 by Representative Howard Berman (D-CA), H.R. 1502 seeks to roll back some of the most egregious post-9/11 policies and strike an appropriate balance between security needs and liberty interests. Among other things, H.R. 1502 would secure due process protections and civil liberties for non-citizens in the U.S., enhance the effectiveness of our nation’s enforcement activities, restore the confidence of immigrant communities in the fairness of our government, and facilitate our efforts at promoting human rights and democracy around the world.

The Secure America and Orderly Immigration Act: Introduced on May 12 by Senators John McCain (R-AZ), Edward Kennedy (D-MA) and others, S. 1033 would comprehensively reform our immigration laws so that they enhance our national security and address the concerns of American businesses and families. Among other things, the bill would establish a break-the-mold new essential worker visa program (the H-5A visa) while also providing a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill’s introduction could adjust to temporary nonimmigrant (H-5B) status; promote family unity and reduce backlogs; call for the creation and implementation of a national strategy for border security and enhanced border intelligence; create new enforcement regimes; and promote circular migration patterns. House companion legislation (H.R. 2330) was introduced on May 12 by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL).

The Agricultural Job Opportunities, Benefits, and Security (AgJobs) Act of 2005: Introduced on February 10, 2005 by Senators Larry Craig (R-ID) and Edward Kennedy (D-MA), S. 359 would create an earned adjustment program for undocumented farm workers who would be eligible to apply for temporary immigration status based on their past work experience, and could become permanent residents upon satisfying prospective work requirements. The legislation would also streamline the existing H-2A foreign agricultural worker program while preserving and enhancing key labor protections. Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced a companion measure in the House (H.R. 884). The bill is similar to legislation that the two Senators introduced in the 108th Congress.

The Save America Comprehensive Immigration Act of 2005: Introduced on May 4 by Representative Sheila Jackson Lee (D-TX), H.R. 2092 would, among many other things, increase the allocation of family-based immigrant visas; provide age-out protection for children; provide earned access to legalization; provide adjustment of status for certain children; update the registry provisions; and enhance border security.

We have fought long and hard to try to get reform of unfair immigration laws, and hopefully, this will be the year that much of the positive reform happens.

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  • Brian D. Lerner

    Immigration Lawyer

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