Obama Directs USCIS To Prepare For Potential Immigration Reform

See below for a recent article regarding potential immigration reform. Hopefully, CIS will be given adequate resources BEFORE any reform happens…………….

Dan

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October 1, 2009

 

President Directs USCIS To Prepare

 

The New York Times quotes the Director of the USCIS "We are under way to prepare for [giving legal status to millions of illegal immigrants]". The NY Times article further quotes the USCIS Director "Mr. Obama has told immigration officials that a legalization program would be part of legislation the White House would propose". For the full story, see here.

http://www.nytimes.com/2009/10/02/us/politics/02immig.html?_r=1

October 2009 Visa Bulletin – Sad News For EB3s Again

The Visa Bulletin for October 2009 was just released and the family and employment-based categories are listed below. It is not good news for those in the EB3 category where visa numbers had become unavailable and it was hoped that the October numbers would enable those professional and skilled workers who have been waiting through their pending adjustment of status applications filed in 2007 to finalize the process. Not so. When the EB3 numbers became unavailable, the numbers were back to 2005. Now, they are back to 2002. These delays create huge burdens and stress, and re-emphasizes the need for comprehensive immigration reform………………………..

Dan

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VISA BULLETIN OCTOBER 2009

Fam-ily	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
1st	22JUL03	22JUL03	22JUL03	08JUN92	08OCT93
2A	01JUN05	01JUN05	01JUN05	01MAR03	01JUN05
2B	22AUG01	22AUG01	22AUG01	22MAY92	01MAY98
3rd	15JAN01	15JAN01	15JAN01	08JUL91	15OCT91
4th	15APR99	15APR99	15APR99	08OCT95	01DEC86

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	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIP-PINES
Employ-ment -Based
1st	C	C	C	C	C
2nd	C	22MAR05	22JAN05	C	C
3rd	01JUN02	22FEB02	15APR01	01MAY02	01JUN02
Other Workers	01JUN01	01JUN01	15APR01	01JUN01	01JUN01
4th	C	C	C	C	C
Certain Religious Workers	U	U	U	U	U
5th	C	C	C	C	C
Targeted Employ-ment Areas/ Regional Centers	C	C	C	C	C
5th Pilot Programs	U	U	U	U	U

Visa Bulletin for September 2009 Shows Little Progress

The visa numbers for September 2009 show little progress and numbers in the employment-based categories are only slightly better in the 2^nd preference category for China and India. The main problem is that numbers are still unavailable in the 3^rd and Other Worker categories which consist of most applicants. Hopefully, October will bring major improvements but…………………..

 

VISA BULLETIN SEPTEMBER 2009

	All Charge-ability Areas Except Those Listed		CHINA- mainland born		INDIA		MEXICO		PHILIPPINES
Family
1st	15MAY03		15MAY03		15MAY03		01JAN91		22SEP93
2A	15APR05		15APR05		15APR05		22DEC02		15APR05
2B	01JUL01		01JUL01		01JUL01		15MAY92		01MAY98
3rd	15DEC00		15DEC00		15DEC00		01JUL91		22SEP91
4th	22FEB99		22FEB99		22FEB99		22SEP95		22OCT86
		All Charge-ability Areas Except Those Listed		CHINA- mainland born		INDIA		MEXICO		PHILIPPINES
Employment-based
1st		C		C		C		C		C
2nd		C		08JAN05		08JAN05		C		C
3rd		U		U		U		U		U
Other Worker		U		U		U		U		U
4th		U		U		U		U		U
Certain Religious Workers		U		U		U		U		U
5th		C		C		C		C		C
Targeted Employ- ment Areas/ Regional Centers		C		C		C		C		C

ICE Posts Notice Regarding Issuance of I-9 Audit Notices

On July, 1, 2009, ICE issued a notice that 652 businesses nationwide are being served with audit notices.

WASHINGTON - "U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations." ICE, July 1, 2009.

http://www.ice.gov/pi/nr/0907/090701washington.htm

 

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Companies that get these notices should promptly involve counsel, BEFORE producing any I-9's for ICE.  ICE is seeking to impose heavy fines for technical paperwork violations, e.g. $800 per I-9 form where there is a signature/date/check box that was missed.  This may be resolved/negotiated but there is no question that ICE is stepping up enforcement. Perhaps ICE wants to give "notice" that this will become an issue as part of immigration reform?

 

Update on Duran Litigation

 

Update on Duran Litigation

 

On June 22, 2009, Plaintiffs filed their appeal brief in the Ninth Circuit. Plaintiffs argue that the court's prior decision in Duran Gonzales should not apply retroactively to those individuals who filed for adjustment of status (with I-212 waivers) in reliance on the old law (as set forth in Perez-Gonzalez).

Duran Gonzales is a circuit-wide class action challenging DHS' refusal to follow Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). In Duran Gonzales, the Ninth Circuit overturned Perez-Gonzalez, deferring to the BIA's holding that individuals who have previously been removed or deported are not eligible to apply for adjustment of status (under INA § 245(i)) along with an accompanying I-212 waiver application. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006).

The suit is brought by Northwest Immigrants Right Project, the American Immigration Law Foundation, and Van Der Hout, Brigagliano & Nightingale, LLP.

 

Dire Predictions for Visa Availability

On June 10, 2009, Mr. Charles Oppenheim of the Department of State Visa Office advised AILA of the following dire predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability.

The below is a reminder of how broken the current immigration system is and how crucial it is for comprehensive immigration reform (CIR) to be passed. One myth is that CIR only is needed for the "illegals". However, the U.S. is quickly losing its competitive edge to obtain the best (and needed) foreign workers, whether it is for rocket scientists or farm workers. Hopefully, the CIR discussions will involve the entire system and emphasize that every nation needs qualified workers regardless of occupation or nationality.

As such, Mr. Oppenheim reported:

• The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
  
• The employment-based fifth preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
  
• The surge in usage of the employment-based fourth and fifth preference numbers is significant beyond those specific categories themselves because, historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based first and second preference categories, allowing the China and India cut-off dates to advance further than would be possible if those categories are limited to only their annual limits. This means EB2 immigrants from China and India could have an even longer wait to obtain green cards.
  
• The EB1 category worldwide will remain current the rest of the fiscal year but demand is high.
  
• The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries "fall across" the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to "fall across" to India and China.
  
• EB2 India. The prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the "green cards" to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
  
• EB2 China. The prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.
  
• EB3 Worldwide will be unavailable the remainder of this fiscal year. As the Department of Labor cleared its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. The Department of State currently estimates that, as of October 1, 2009, the EB3 worldwide cut-off date will be March 1, 2003. There will be extended delays in this category.
  
• EB3 visas for India, China and Mexico applicants will be unavailable for the remainder of the fiscal year. It is estimated, based on current demand for visa numbers that as of October 1, 2009, the following cut-off dates could be established: China will be March 1, 2003; India will be November 1, 2001; and Mexico will be March 1, 2003. These estimates are based on "current demand" in the first 7 ½ months of FY2009, and a lot could change between now and early September when October dates are established.
  
• There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the Department of State awaiting visa numbers.
  
• There are 2.7 million family-based applicants on the waiting lists for consular processing. Note that this information was provided in the March Visa Bulletin.
  
• There could be approximately 50,000 employment-based applicants on the waiting lists for consular processing.
  
• Currently almost 90% of all employment-based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.
  

 

Immigration Reform Update

See below. Momentum seems to be building for immigration reform (in particular considering the upcoming White House meeting with congressional leaders on June 8, 2009 to discuss immigration reform). Hopefully, sound minds will prevail. The U.S. (especially the economy) sorely needs to fix its immigration system.

Dan Larsson

Momentum for Immigration Reform Continues to Build

FOR IMMEDIATE RELEASE:
Wednesday, May 20, 2009
CONTACT:
George Tzamaras
202-507-7649
gtzamaras@aila.org

• Sens. Menendez, Gillibrand, Kennedy and Schumer introduce "The Reuniting Families Act" in the Senate
  
• Judiciary Immigration Subcommittee holds its second Hearing "Securing the Borders and America's Points of Entry, What Remains to Be Done"
  
• The Police Foundation releases a report titled "The Role of Local Police: Striking a
  
• Balance Between Immigration Enforcement and Civil Liberties"
  
• The National Foundation for American Policy releases two studies today: "Common Sense and Common Interests" and "A Commission to Regulate Immigration? A Bad Idea Whose Time Should Not Come"
  
• White House announces meeting on immigration reform with Congressional leaders for June 8
  

WASHINGTON, DC - The American Immigration Lawyers Association (AILA) welcomes several developments today that signal that immigration reform is gaining momentum!

AILA commends US Senators Robert Menendez (D-NJ), Kirsten Gillibrand (D-NY), Edward Kennedy (D-MA) and Charles Schumer (D-NY) for introducing legislation today that seeks to restore America's commitment to family unity. The Reuniting Families Act would help legal immigrants reunite with their families and end decade-long waiting times for legal immigrant visas. "This is momentous day for all Americans who understand the dire need for immigration," said Charles H. Kuck, president of AILA. "This important legislation promotes timely reunification of families by recapturing unused visas and eliminating the tragically long family immigration backlogs."

The legislation would reinforce our commitment to families and reduce current wait times in the family immigration system by:

• Helping an estimated 322,000 spouses and children under the age of 21 of lawful permanent residents who are waiting in line to reunite with their families by reclassifying them as immediate relatives
  
• Addressing the decades-long backlogs for certain countries by raising the per-country immigration limits from 7 percent to 10 percent of total admissions
  
• Protecting widows, widowers and orphans by allowing them to continue to wait in line for a visa after the death of the sponsoring relative.
  
• Recapturing an estimated 400,000 family-sponsored and employment-based visas that went unused between 1992 and 2007.
  
• Respecting the contribution of Filipino World War II veterans by reducing their children's waiting times for an immigrant visa.
  
• Promoting family unity by allowing more people who are already eligible for an immigrant visa to efficiently use our legal family immigration system.
  
• Providing equal treatment for stepchildren and biological children by allowing stepchildren under the age of 21 to immigrate upon their parents' marriage (current age limit is 18).
  

In addition to this important legislation, the Senate Judiciary Immigration Subcommittee today launched an aggressive effort to press for passage of comprehensive immigration legislation, with Subcommittee Chairman Charles Schumer, D-NY, saying conditions are ripe for Congressional action. Schumer also announced an agenda of hearings for the coming months and said he is "cautiously optimistic that we can pass strong, fair, practical and effective immigration reform this year."

Further, a report released today by the nonpartisan Police Foundation criticized efforts to have local law enforcement agencies enforce federal immigration laws. The group said the report "finds that immigration enforcement by local police undermines their core public safety mission, diverts scarce resources, increases their exposure to liability and litigation, and exacerbates fear in communities already distrustful of police."

Also, the National Foundation of American Policy released two studies earlier today. One study titled, "Common Sense, Common Interests," recommends combining fully portable work permits - not tied to a specific employer - with bilateral administrative agreements. The second study, "A Commission to Regulate Immigration? A Bad Idea Whose Time Should Not Come," concludes that creating a commission to establish the annual level of temporary visas and green cards for high and low-skilled workers would result in unaccountable officials with the enormous power to change the law based on little more than their personal preference.

And finally, the White House today announced that it will hold a high-level meeting with Congressional leaders on June 8th to discuss plans for immigration reform.

These important developments all keep the momentum building towards an immigration overhaul that is desperately needed by our country. AILA pledges itself to working closely with Congress and the Administration to make sure that immigration reform moves forward to a successful conclusion in the months ahead!

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.