This is part 3 of a 6 part document. This newsletter is never sent out unsolicited. UNSUBSCRIBE instructions can be found at http://www.visalaw.com/subscribe2.html. The complete newsletter will also be posted shortly at http://www.visalaw.com/bulletin/ if you do not receive each part. 11. STATE DEPARTMENT VISA BULLETIN FOR JANUARY 1999 A. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers during January. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the immigration and Naturalization Service reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by December 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date. 1. 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. 3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers: A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation. Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences. EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers." Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395. 4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES. 5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) PREFERENCES All Charge- ability Areas CHINA- Except Those mainland Listed born INDIA MEXICO PHILIPPINES Family 1st 08SEP97 08SEP97 08SEP97 01AUG93 22APR87 2A* 15JUN94 15JUN94 15JUN94 01JUN93 15JUN94 2B 15MAR92 15MAR92 15MAR92 08JUL91 15MAR92 3rd 01JUN95 01JUN95 01JUN95 01MAY90 22MAR87 4th 08MAY88 08MAY88 22MAY86 01NOV87 15AUG78 *NOTE: For January, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUN93. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUN93 and earlier than 15JUN94. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.) All Charge- ability Areas CHINA- Except Those mainland Listed born INDIA MEXICO PHILIPPINES Employment- Based 1st C 22NOV97 C C C 2nd C 22JUN96 22JUL97 C C 3rd C 08OCT94 15JAN96 C C Other 22MAR92 22MAR92 22MAR92 22MAR92 22MAR92 Workers 4th C C C C C Certain C C C C C Religious Workers 5th C 15NOV97 C C C Targeted Employ- C 15NOV97 C C C ment Areas/ Regional Centers The Department of State has available a recorded message with visa availability information which can be heard at (202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month. B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the Immigration and Nationality Act provides 50,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. DV visas are divided among six geographic regions. Not more than 3,500 visas (7% of the 50,000 visa limit) may be provided to immigrants from any one country. For January, immigrant numbers in the DV category are available to qualified DV-99 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: All DV Charge- ability Areas Except Those Region Listed Separately AFRICA AF 11,688 ASIA AS 3,272 EUROPE EU 8,694 EXCEPT: ALBANIA EU 6,622 NORTH AMERICA NA 24 (BAHAMAS) OCEANIA OC 330 SOUTH AMERICA, SA 1,442 CENTRAL AMERICA, and the CARIBBEAN Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-99 program ends as of September 30, 1999. DV visas may not be issued to DV-99 applicants after that date. Similarly, spouses and children accompanying or following to join DV-99 principals are only entitled to derivative DV status until September 30, 1999. DV visa availability through the very end of FY-1999 cannot be taken for granted. Numbers could be exhausted prior to September 30. Once all numbers provided by law for the DV-99 program have been used, no further issuances will be possible. C. MAILING OF AFFIDAVIT OF SUPPORT FORM I-864 TO U.S. PETITIONER Effective December 14, the Department of State is implementing a new procedure to assist prospective immigrants to comply with the requirement to demonstrate that they are not likely to become a Public Charge to the U.S. Government. This is another example of the Department's effort to streamline immigrant visa processing, and to use its resources as efficiently as possible. The State Department's National Visa Center (NVC), located in Portsmouth, N.H., will mail the affidavit of support form I-864 directly to the U.S. petitioner who is sponsoring the prospective immigrant's visa application. Under the old system, NVC sent the form to the applicant, who then had to forward it to the petitioner in the United States. In most cases, NVC will instruct the petitioner to send the completed affidavit of support form to the applicant for presentation to the Embassy or Consulate at the time of the visa interview. However, beginning January 4, 1999, for the State Department's three largest immigrant visa processing posts (Ciudad Juarez, Manila, and Santo Domingo), NVC will instruct the petitioner to return the completed form to NVC for a technical review. NVC will verify that the form has been completed, signed and notarized and that the requisite tax returns are present. If it is determined that one or more of these steps has not been done, NVC will correspond with the petitioner to assist him or her in properly completing the form. NVC then forwards the file to the Embassy or Consulate where the interview takes place. The final decision as to the sufficiency of the affidavit is made by the interviewing consular officer. By having NVC send the affidavit of support form directly to the petitioner, and by pre-screening the completed form for our three largest posts, we hope to reduce processing time and improve the likelihood that the form will be fully completed by the time of the visa interview. Using these steps, we can minimize the number of refusals due to incomplete documentation, and save the applicant from having to make unnecessary visits to our Embassies and Consulates. Readers are reminded that an I-864 affidavit of support if required by: * All Family-based immigrants, including adoptees (but self-petitioning widow/ers and battered spouses and children are exempt from this requirement); and * Those Employment-based immigrants who are petitioned by a relative or by a business in which a relative has significant ownership interest. Diversity visa (DV) cases do not require an I-864, and are not affected. ________________________________________________ 12. NEWS BYTES Federal agency officials regularly meet with representatives of immigrant advocacy organizations like the National Association of Foreign Student Advisors and the American Immigration Lawyers Association. Agency officials often share important information at these meetings that affect the general public. The following news items were revealed at such agency/organization meetings over the last month: - I-485 processing remains on hold at all four INS Regional Service Center while software problems connected to the Year 2000 bug. Processing will not begin again until the end of January. The INS will probably not even work cases for people who will lose their immediate relative status because they are turning 21 years of age. [Note - we have received late word that at least one of the four service centers - the Nebraska Service Center - has resumed processing I-485 cases]. - Speaking of Y2K problems, glitches are already being identified with INS adjudications. Local INS offices have been unable to process Employment Authorization Document extension requests where the requested expiration date is post-Y2K. INS Headquarters states that the problem stems from the fact that local INS offices use a standalone production system for EADs instead of the INS' CLAIMS software. The INS believes the problem will be resolved by the end of 1998. - The INS released information on the pace of approvals for H-1B cases. There are 115,000 H-1B visas available for the fiscal year that began October 1, 1998 and continues through September 30th of next year. From October through November 15th, 21,149 H-1B visas had been issued. As of that date, another 37,577 cases were pending. The INS reports that there was only a modest increase in the number of applications prior to the new $500 H-1B fee taking effect on December 1st. While more than half of the visas available for the fiscal year were used up in the first two months, a large portion of the approvals were for applications filed in the last fiscal year before the visa cap was reached. Only after a few more months will it be possible to forecast with any reliability if and when the cap will be reached this fiscal year. - Speaking of the new $500 add-on H-1B fee, the INS has stated that for H-1B cases, it will accept either one check for $610 or two checks - one for $500 and one for $110. Checks written on the alien's bank account are not acceptable since the new law prohibits workers from being stuck paying the new filing fee. - The Texas Service Center reports that I-824 cases are now being processed within 90 days. These are applications for duplicate approval notices and notification of consulates of INS approvals. - Problems have been reported to the Texas Service Center regarding a significant gap between the time an I-765 Application for Employment Authorization has been approved and the actual issuance of the Employment Authorization Document. The TSC instructs that applicants who have not received their cards within 90 days of filing their application should fax the TSC at 214-767-7409 to resolve the problem. - The California Service Center is reporting that they are having problems getting some naturalization applicants scheduled for fingerprints because there are not enough Application Service Centers in certain geographic areas with a high concentration of applicants. - The California Service Center admits that it is devoting very little attention to cases where a consulate rejects a case and returns the case to the INS for further processing. The CSC reports that it has been directed by INS Headquarters to assign the lowest priority to these cases and it will not assign any additional resources to these cases until it is current on all case types. But the CSC does expect some improvement soon and the CSC is slowly cutting its backlog. - The California Service Center has identified a list of some I-485 cases where it might be more inclined to require an interview at a local INS office: - 2% of all cases chosen randomly - certain 245i cases such as those where the applicant entered the US without inspection - EB-1 multinational executives if a company is not well-known or the applicant lacks proof of qualification for the position - EB-3 Unskilled workers - EB-4 Religious workers where the employer is not well-known or where the applicant lacks credentials, proof of ordination, or proof of education/training - multiple petitions from the same address - the applicant is the subject of an investigation - cases on the local Look-Out list - The Department of Labor is considering transferring all foreign labor programs (such as the H-1B and permanent labor certification programs) from the Employment Training Administration (ETA) to the Employment Standards Administration. ESA is considering a significant reshaping of the labor certification process to greatly streamline procedures. Among the options being considered is an "attestation" program where employers would have to swear that required recruiting has taken place and the ESA would investigate violations. The proposed change could be incorporated into the 2000 fiscal year budget. ________________________________________________ 13. POLL QUESTIONS AMERICANS' ATTITUDES TOWARD IMMIGRANTS A recent poll jointly commissioned by NBC television and the Wall Street Journal indicates that much of the public maintains anti-immigrant sentiment even though the economy is strong and unemployment remains at historic lows. One of the questions asked of half of those polled was the following: Which of the following questions do you agree with more: Statement A: Some people believe that we should increase the number of immigrants who are let into the country because they fill a number of jobs that many companies are having trouble filling. OR Statement B: Others believe that we should not increase the number of immigrants who are let in, because they will take jobs that Americans should have and will ultimately result in higher unemployment. Which of these do you agree with more? Statement A/should increase the number of immigrants let in - 20% agreed Statement B/should not increase the number of immigrants let in - 72% agreed Not sure - 8% The second half of those polled were asked the following: Many computer and software companies are experiencing a shortage of trained workers. Do you believe that we should or should not change our immigration policies to allow more people trained in these fields to come into the United States? Should change our immigration policies - 21% Should not change our immigration policies - 72% Not sure - 7% ________________________________________________ 14. IMMIGRATION AND NATURALIZATION SERVICE RELEASING DETAINED NATIONALS OF HURRICANE-BATTERED COUNTRIES There have been a number of immigration developments in the last month related to nationals of countries devastated by Hurricane Mitch. Readers may recall from our last issue that the Clinton Administration has already suspended all deportations of individuals to the affected countries. - About 3,000 non-criminal detained individuals from Honduras, Guatemala, El Salvador and Nicaragua are scheduled to be released by the INS through January 7, 1999. The billions of dollars these immigrants annually send home is seen as an important supplement to the humanitarian aid being sent by the United States government. In fact, immigrants from the affected countries send back nearly $3 billion per year. The US only intends to send $270 million in relief aid. Also, many of the detainees wish to return home immediately to check on family members. INS Commissioner Doris Meisner stated "The destruction caused by Hurricane Mitch makes it impossible for governments of the affected countries to receive their nationals at this time." She further stated that the mass release was "prudent and humane." Detainees may be released under the following circumstances: 1. Aliens waiting for their immigration court hearings who are not subject to mandatory detention under immigration law can be paroled from detention; 2. Non-criminal aliens who have a final order of removal can be released under an Order of Supervision. This order normally requires an alien to report periodically to an INS office; and 3. Non-aggravated felon criminal aliens with a final order of removal who have been detained more than 90 days also can be considered for release under and Order of Supervision. All releases are discretionary and will such factors as the alien's health background, criminal background, history of appearance for immigration proceedings and the availability of support mechanisms such as family, friends or private organizations. The INS is working with non-governmental organizations to request their help in the program. - The INS at the same time is preparing plans for a massive immigration wave of refugees from the Hurricane countries. A number of news organizations have reported anecdotal evidence that large numbers of Central Americans are planning to leave for the US. The INS and State Department are so far not reporting any significant increase in illegal entries in to the country, however. Nevertheless, the INS is planning the construction of as many as ten centers to detain illegal aliens. Each center could hold up to 5,000 people. Locations have not yet been determined. - The President of El Salvador has asked the US to extend the temporary ban on deportations from the US to his country. President Armando Calderon Sol has requested the deportation moratorium be extended from January 1999 for an additional 18 months. The Salvadoran leader believes the money that Salvadorans in the US send home will be critical to rebuilding the country.
SISKIND'S IMMIGRATION BULLETIN - 12/98 (3/6) - Articles 11-14
Gregory Siskind, Attorney at Law Tue, 29 Dec 1998 20:49:41 -0500
