The Department of State released the Visa Bulletin for November 2014 which notes a slight forward movement in most categories, except the employment-based, second preference (EB2) India category, which retrogressed from May 1, 2009 to February 15, 2005. The Visa Bulletin, see below, also included notes on potential visa availability in the coming months.
Per the AILA DOS Liaison Committee’s followup with Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, “retrogression of EB-2 India appears to be imminent, and could happen as early as November. The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005.”
Attorney Sharma defends client who was wrongly accused of being a ‘terrorist’ and barred from entering the United States
Attorney Sharma and our client were interviewed by Channel 4 News yesterday. Our client’s Afghan husband has been wrongly deemed permanently inadmissible to the U.S. under the Terrorism Related Inadmissibility Grounds section in the INA, the same overbroad regulation that many innocent individuals have been unjustly subject to.
For example: an asylee from Burundi was considered a terrorist under this regulation, and jailed for 20 months by the U.S. because he was found to have financially supported the Rebel group that robbed him of $4.00 and a bagged lunch. For fighting against Apartheid, Mr. Nelson Mandela was subjected to this regulation and had to be granted a waiver to enter the U.S. by the then Secretary of State Condoleezza Rice.
Attorney Sharma will be filing an exemption for our client’s husband with the offices of the Secretary of State Hillary Clinton, Secretary of the Department of Homeland Security Janet Napolitano and/or U.S. Attorney General Eric Holder. Our exemption will petition the highest levels of our government to review this case again, and approve an admission to the U.S. if no adverse grounds are discovered.
EB-2 Priority Date Movement in FY2012 for China-mainland Born and India expected to retrogress to August 15, 2007
IMMIGRATION ATTORNEY APPLAUDS NEWLY ANNOUNCED DHS REFORMS IN FURTHERANCE OF ATTRACTING AND RETAINING HIGHLY SKILLED IMMIGRANTS/INVESTORS AND CALLS FOR PARALLEL CHANGES IN THE U.S. CONSULAR PROCESSING SYSTEM
The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:
1. The Creation of a “Startup Visa,”
2. Strengthening the H-1B nonimmigrant professional program,
3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.
The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.
Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors. It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy. Our various immigration departments and agencies are interpreting the same laws differently. The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates. Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”
Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection. However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad. These employee(s) may be held abroad for months or years, away from their family, home and of course, job. U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”
“A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B. Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS. Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context. This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010. Unfortunately, no one seems to have issued the revisions to the Consulates. Further, it appears that a substantial percentage of such H-1B visa denials may be improper. This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication. For example, 9 FAM 41.53(d) states that,”
“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”
Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,
“…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”
Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own. This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”
“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”
Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”. Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”
“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”
Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”
“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “
Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”
“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration. Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”
Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently. Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system. These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level. This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system. I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”
The Chief of the Immigrant Visa Control and Reporting Division, Charlie Oppenheim, U.S. Department of State, recently stated that has been a substantial reduction for EB-1 numbers, beginning in 10/2010.
“[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.”
As a result, EB-2 priority dates for China and India are expected to move forward some years.
The Department of State is
responsible for administering the provisions of the Immigration and Nationality
Act (INA) relating to the numerical limitations on immigrant visa issuances.
This information sheet explains the operation of the immigrant number allotment
and control system.
1. HOW THE SYSTEM OPERATES:
At the beginning of each
month, the Visa Office (VO) receives a report from each consular post listing
totals of documentarily qualified immigrant visa applicants in categories
subject to numerical limitation. Cases are grouped by foreign state chargeability/preference/priority
No names are reported. During
the first week of each month, this documentarily qualified demand is tabulated.
VO subdivides the annual preference and foreign state limitations specified by
the INA into monthly allotments. The totals of documentarily qualified
applicants which have been reported to VO, are compared each month with the
numbers available for the next regular allotment. The determination of how many numbers are
available requires consideration of several of variables, including: past number use; estimates of future number
use and return rates; and estimates of Citizenship and Immigration Service
demand based on cut-off date movements.
Once this is done, the cut-off dates are established and numbers are
allocated to reported applicants in order of their priority dates, the
oldest dates first.
If there are sufficient
numbers in a particular category to satisfy all reported documentarily qualified
demand, the category is considered “Current”. For example: If the
monthly allocation target is 3,000 and we only have demand for 1,000 applicants
the category can be “Current”.
Whenever the total of
documentarily qualified applicants in a category exceeds the supply of numbers
available for allotment for the particular month, the category is considered to
be “oversubscribed” and a visa availability cut-off date is
established. The cut-off date is the priority date of the first documentarily
qualified applicant who could not be accommodated for a visa number. For
example: If the monthly target is 3,000 and we have demand for 8,000 applicants,
then we would need to establish a cut-off date so that only 3,000 numbers would
be allocated. In this case, the cut-off
would be the priority date of the 3,001st applicant.
Only persons with a priority
date earlier than a cut-off date are entitled to allotment of a visa number.
The cut-off dates are the 1st, 8th, 15th, and 22nd of a month, since VO groups
demand for numbers under these dates. (Priority dates of the first through
seventh of a month are grouped under the 1st, the eighth through the fourteenth
under the 8th, etc.) VO attempts to establish the cut-off dates for the
following month on or about the 8th of each month. The dates are immediately
transmitted to consular posts and Citizenship and Immigration Services (CIS),
and also published in the Visa Bulletin and online at the CA Web site (www.travel.state.gov). Visa allotments for use during that month are
transmitted to consular posts. CIS
requests visa allotments for adjustment of status cases only when all other
case processing has been completed.
2. DEFINITION OF SOME TERMS:
Normally, the date on which
the petition to accord the applicant immigrant status was filed.
The allocation of an immigrant
number to a consular office or to CIS.
This number may be used for visa issuance or adjustment of status.
Foreign State Chargeability:
Ordinarily, an immigrant is
chargeable for visa purposes to the numerical limitation for the foreign state
or dependent area in which the immigrant’s place of birth is located. Exceptions
are provided for a child (unmarried and under 21 years of age) or spouse
accompanying or following to join a principal to prevent the separation of
family members, as well as for an applicant born in the U.S. or in a foreign
state of which neither parent was a native or resident. Alternate chargeability
is desirable when the visa cut-off date for the foreign state of a parent or
spouse is more advantageous than that of the applicant’s foreign state.
The applicant has obtained all
documents specified by the consular officer as sufficient to meet the formal
visa application requirements, and necessary processing procedures of the
consular office have been completed.
3. BACKGROUND INFORMATION ON THE SYSTEM AND
CLARIFICATION OF SOME FREQUENTLY MISUNDERSTOOD POINTS:
Applicants entitled to
immigrant status become documentarily qualified at their own initiative and
convenience. By no means has every applicant with a priority date earlier than
a prevailing cut-off date been processed for final visa action. On the
contrary, visa allotments are made only on the basis of the total applicants
reported documentarily qualified each month. Demand for visa numbers can
fluctuate from one month to another, with the inevitable impact on cut-off dates.
If an applicant is reported
documentarily qualified but allocation of a visa number is not possible because
of a visa availability cut-off date, the demand is recorded at VO and an
allocation is made as soon as the applicable cut-off date advances beyond the
applicant’s priority date. There is no need for such applicant to be reported a
Visa numbers are always
allotted for all documentarily qualified applicants with a priority date before
the relevant cut-off date, as long as the case had been reported to VO in time
to be included in the monthly calculation of visa availability. Failure of visa
number receipt by the overseas processing office could mean that the request
was not dispatched in time to reach VO for the monthly allocation cycle, or
that information on the request was incomplete or inaccurate (e.g., incorrect
priority date).Allocations to Foreign Service posts outside the regular monthly
cycle are possible in emergency or exceptional cases, but only at the request
of the office processing the case. Note that should retrogression of a cut-off
date be announced, VO can honor extraordinary requests for additional numbers
only if the applicant’s priority date is earlier than the retrogressed cut-off
date. Not all numbers allocated are actually used for visa issuance; some are
returned to VO and are reincorporated into the pool of numbers available for
later allocation during the fiscal year. The rate of return of unused numbers
may fluctuate from month to month, just as demand may fluctuate. Lower returns
mean fewer numbers available for subsequent reallocation. Fluctuations can
cause cut-off date movement to slow, stop, or even retrogress. Retrogression is
particularly possible near the end of the fiscal year as visa issuance
approaches the annual limitations.
Per-country limit: The annual
per-country limitation of 7% is a cap, which visa issuances to any single
country may not exceed. Applicants compete for visas primarily on a worldwide
basis. The country limitation serves to avoid monopolization of virtually all
the annual limitation by applicants from only a few countries. This limitation
is not a quota to which any particular country is entitled, however. A portion of the numbers provided to the
Family Second preference category are exempt from this per-country cap.
The American Competitiveness
in the Twenty-First Century Act (AC21) removed the per-country limit in any
calendar quarter in which overall applicant demand for Employment-based visa
numbers is less than the total of such numbers available.
Applicability of Section
202(e): When visa demand by documentarily qualified applicants from a particular
country exceeds the amount of numbers available under the annual numerical limitation,
that country is considered to be oversubscribed.
Oversubscription may require
the establishment of a cut-off date which is earlier than that which applies to
a particular visa category on a worldwide basis. The prorating of numbers for
an oversubscribed country follows the same percentages specified for the
division of the worldwide annual limitation among thepreferences. (Note that
visa availability cut-off dates for oversubscribed areas may not be later than
worldwide cut-off dates, if any, for the respective preferences.)