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    Published on 10-05-2015 04:28 PM

    WHEN IS A VISA "IMMEDIATELY AVAILABLE" FOR FILING AN ADJUSTMENT OF STATUS APPLICATION

    by


    Central in the Mehta v. DOS lawsuit is whether the administration is authorized to establish a dual date system in the Department of State’s (DOS) Visa Bulletin, which it did for the first time in October 2015. When the DOS first issued the October 2015 Visa Bulletin on September 9, 2015, it established a filing date, which allowed applicants to file for adjustment of status much earlier than the final action date. On September 25, 2015, in a revised October 2015 Visa Bulletin, the administration abruptly moved back some of the filing dates by at least two years, thus depriving thousands from filing I-485 adjustment of status applications on October 1, 2015. A lawsuit was filed challenging this revision in the filing dates, including a motion for a temporary restraining order. The government has filed pleadings in opposition to the TRO, which includes a declaration from Charlie Oppenheim.
    INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. 8 C.F.R. 245.1(g)(1) links visa availability to the Department of State’s (DOS)  monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 C.F.R. 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.
    DOS has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012  would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007)  . It was obvious that these applicants would not receive their green cards during that time frame. The DOS  then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 are still waiting today.
    These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The following extract from
    Published on 10-02-2015 11:53 AM

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. Part 5 of 5

    by


    Visa Bulletin - October 2015



    Part 5 - Their Additional Benefits To All

    In coming out with the “B” charts and redefining the point of “visa availability,” the State Department put more order into its system and has ended its reliance on guesswork in assessing visa demand, especially with U.S.C.I.S. cases for adjustment of status. With a clear vision into a once darkened tunnel, the Visa Office can stop the wild gyrations of visa movements from month-to-month, establish a more orderly flow, and concentrate its efforts on using up all the visa numbers which are available during a fiscal year. This is important as over the years, the State Department has not been able to calculate and allocate well enough the number of remaining available visas throughout the fiscal year and left hundreds of thousands of visas on the table, which were not able to be reallocated and have thus far been lost. The White House briefing of November 20, 2014, spoke to this in saying that agencies should look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law, and the White House paper, “Modernizing & Streamlining Our Legal Immigration System for the 21st Century” in July 2015, further expanded this in saying that “State will increase ...

    Published on 10-02-2015 11:40 AM

    The H1B Nicknamed the Genius Visa; H1B Visa Program Keeps US STEM Industries from Collapse

    by


    Theoretical physicist and bestselling author Dr. Michio Kaku has been and continues to be very candid about what is actually keeping the United States scientific establishment from collapsing: the H1B visa program.

    Nicknamed the “Genius Visa,” holding an H1B visa enables foreign nationals with advanced degrees to live ...

    Published on 10-01-2015 02:31 PM

    Green-Card Holders and Legal Immigration to the United States

    by


    Jeanne Batalova













    Nearly 1 million people received U.S. green cards in 2013. (Photo: Sarah Sosiak)

    Lawful permanent residents (LPRs), also known as green-card holders, are persons lawfully admitted for permanent residence in the United States who have the right to reside, work, study, and own property in the country. They may serve in the U.S. military and apply to become U.S. citizens once they meet eligibility requirements. Close to 1 million people received green cards in 2013, a 4 percent drop from 1.03 million in 2012.

    The annual inflow of LPRs has ebbed and flowed with changes in U.S. immigration policy and processing backlogs. There are four main pathways to gain LPR status: family sponsorship, a job offer from a U.S. employer, humanitarian reasons, and selection via a green-card lottery. The immigrant-admission system prioritizes family-based immigrants, followed by employer-sponsored immigrants and those who arrive as humanitarian migrants. A total of 55,000 green cards are reserved for the lottery, known as the Diversity Visa program. Click here for an interactive chart showing the annual number of new LPRs between 1820 and 2013.

    Using data from the Department of Homeland Security’s (DHS) Yearbook of Immigration Statistics, this Spotlight provides information on foreign nationals who were granted LPR status during fiscal year (FY) 2013, focusing on the type and broad class of admission, major countries of origin, and geographic distribution within the United States.

    Note: All yearly data is for the government's fiscal year (October 1 through September 30). All data are from the DHS Office of Immigration Statistics (OIS) unless otherwise noted.

    Click on the bullet points below for more information:

    • Recent Arrivals and Status Adjusters
    • Broad Class of Admission
    • Country of Birth
    • State of Residence
    • Naturalization Eligibility

    Recent Arrivals and Status Adjusters

    The total annual number of foreigners who receive LPR status consists of two different flows. The first is newly arrived LPRs—people issued immigrant visas overseas by the State Department. The second is status adjusters—individuals who previously entered the United States and then adjusted to permanent residence status from within the country.

    A person, for example, might arrive in the United States on an H-1B temporary worker visa. If her company chooses to sponsor her for permanent residence, the employer can petition U.S. Citizenship and Immigration Services (USCIS) for a green card on her behalf under an employment-preference visa. If she meets the criteria and if annual numerical ceilings for employment-preference visas and per-country limits have not been met, she would receive a card stating she is lawfully admitted for permanent residence. She would then be counted as a status adjuster for that year.

    Although the number of adjustments has varied between 1986 and 2013, the number of new arrivals has remained relatively stable, with about 420,000 on average per year (see Figure 1). Changes in immigration legislation, application and visa processing times, and case backlogs are primarily responsible for wide fluctuations in the numbers.

    ...
    Published on 10-01-2015 02:18 PM

    Article: Cite as Matter of H-N-N-B-, ID 14524 (AAO Sept. 10, 2015) and Other Changes

    by


    ...
    Published on 09-30-2015 04:24 PM

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. - Part 2 of 5.

    by


    Visa Bulletin - October 2015


    Part 4 -How The New System Will Work

    The Visa Office will indicate in the visa bulletin for each month whether U.S.C.I.S. is willing to accept adjustment of status applications in the upcoming month in accordance with the new “B” charts. If so willing, applicants whose priority dates are before the cutoff dates in the preference categories will be able to file I-485 applications. Since the time that they will be filing will generally be well in advance of when final action can be taken on their cases, U.S.C.I.S. will be able to pre-adjudicate their cases ahead of or at the time that final action can be taken and their cases can actually be approved. In the American Immigration Lawyers Association “Check-In with DOS’s Charlie Oppenheim” of September 15, 2015, Mr. Oppenheim revealed that when U.S.C.I.S. receives the I-485 case, it will pre-adjudicate it and request a visa number from the State Department; that if the “Final Action Date” is current, the State Department will ...

    Published on 09-30-2015 04:01 PM

    EB-5 Update-Understanding the October 2015 Visa Bulletin Changes — When to File Investor-Based I-485 Adjustments?

    by


    THIS BLOG DOES NOT CONSTITUTE LEGAL ADVICE. TO OBTAIN LEGAL ADVICE CONSULT WITH A LICENSED AND KNOWLEDGEABLE IMMIGRATION LAWYER.

    *Copyright © 2015  Wolfsdorf Rosenthal LLP

    1. To understand the Visa Bulletin, one needs to learn the terminology
      • Visa Bulletin (VB) ? PUBLISHED MONTHLY
      • New Visa Bulletin (NVB) ? OCTOBER 2015
      • Priority date (PD) ? DATE I-526 RECEIVED
      • Cut-Off Date (COD) ? OLD VISA BULLETIN
      • Final Action Date (FAD) ? FORMERLY COD
      • Date Filing Application (DFF) ? NEW FOR FILING ADJUSTMENT – [FORMERLY ONLY NVC FEE BILL ISSUANCE DATE]

    2. Why the changes?

      On November 20, 2014, DHS directed USCIS to work with the Department of State (DOS) to improve the Visa Bulletin system. On July 16, 2015, the Obama Administration issued a report Modernizing and Streamlining Our Legal Immigration System for the 21st Century. As a result, USCIS/DOS revised the procedures for determining visa availability for applicants waiting to file for adjustment of status.  This change enhances the ability to more accurately predict overall immigrant visa demand and minimize month-to-month fluctuations.


    3. What is a Priority Date (PD) and What is its Significance?

      An EB-5 Priority date (PD) is the date USCIS receives the I-526 EB-5 petition. The Visa Bulletin (VB) is updated on the 9th or 10th of each month, or as needed, with the new Cut-Off Dates (COD). See http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. A PD must be “Current,” to schedule a final interview at a Consulate/Embassy abroad or to approve an application for adjustment of status. Previously, the PD had to be “Current” to file an I-485 adjustment. However, we now have published qualifying dates. In the case of Chinese born applicants, the published qualifying date is May 1, 2015. This date is new and is the Date for Filing Application (DFF) for October 2015. If the PD is earlier than Date Filing Application (DFF) e.g. April 30, 2015, a foreign national may be eligible to file an I-485 application.


    4. The New Visa Bulletin (NVB) has Two Charts, One for Filing and One for Approval
      • Date for Filing Application (DFF)
        ? I-485 adjustment of status may be filed
        ? Applicants also notified to submit documentation to National Visa Center (NVC) and pay fee bill.
      • Final Action Date(FAD) 
        ? I-485 adjustment of status may be approved
        ? Final consular application may be approved

      The DFF chart is used to determine ...

    Published on 09-29-2015 04:04 PM

    Due Diligence of Economic Impact Studies

    by


    Rupy, as someone who performs due diligence on a regular basis, how do you approach due diligence of economic impact studies?

    Rupy Cheema: We start off ensuring that the data in the economic impact study is consistent with the data in the rest of the project’s documents, i.e. the business plan, market feasibility study and the PPM. I don’t think I’ve ever looked at a project where we did not find inconsistencies between these four documents simply because the economic analysis happened at a certain point and then there’s different versions of documents floating around and the changes don’t get picked up. Those are some of the most common issues we find at the beginning of our review, just reconciling the discrepancies in the documents.

    One of the things we thoroughly look at is financial projections and the market feasibility of the project. If we feel that the projections are aggressive or overstated or that the market feasibility is more positive than perhaps it should be, and the revenue inputs are being used in the economic analysis, we would point out in our due diligence that those jobs may then be overstated. 

    As far as construction documents, we want to see that the construction expenses or costs used in the economic analysis are supported by other documents. If there is a construction contract available we’ll look for support for those numbers in the economic analysis.

    Then we rely on an economist to look more closely at the technical aspect of the economic analysis, such as regional impacts, excludable costs and questionable methodologies. 

    Kurt Reuss: Would you mind posing a question to one of our economists?

    Rupy Cheem: Sure. Michael, all of the topics listed on the displayed slide are things we look at in our due diligence. Would you please select and address one of them. 

    Michael Kester: I’ll talk a bit on the impact area under study. The multipliers that we use and the input output models are reflective of a certain defined area. For example, with RIMS II the smallest area you can order is a county. You can also order multipliers reflective of multiple counties, such as the counties that make up an MSA or a CSA.

    A couple of key issues about the impact area of the study are, as Rupy had just mentioned, construction expenditures and revenue inputs which need to be supported. The economic study should support the impact area it’s using which itself ...

    Published on 09-29-2015 03:59 PM

    Changing Birthright Citizenship Doesn’t Need a New Constitution

    by


    It seems like a no brainer. After all, it is written in the first sentence of the 14th amendment of the United States Constitution that anyone born in the United States is a citizen. How could anyone refute that? And everyone knows that it is almost impossible to change the constitution. It can take years, often decades to do so.

    So how can Donald Trump and almost all the U.S. Republican presidential candidates ...
    Published on 09-28-2015 04:52 PM

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. - Part 3 of 5

    by


    (NOTE: In the middle of this series, the Visa Office has revised the October 2015 visa bulletin on September 25, 2015, to supersede and replace the version issued on September 9, 2015, due to U.S.C.I.S. discontent with some of the filing dates. Applicants for adjustment of status must now use the revised charts to file I-485 applications. As said in part one of our five-part series, U.S.C.I.S. will in general follow the “final action” dates charts, but may exercise discretion to accept applications in accordance with the “dates for filing” charts. For the month of October, U.S.C.I.S. previously agreed with the State Department to accept adjustment applications using the “dates for filing” charts. However, it was not happy with the “dates for filing” charts for October when they appeared, and so the State Department had to reissue ...

    Published on 09-28-2015 04:44 PM

    IT'S DEJA VU ALL OVER AGAIN: STATE DEPARTMENT MOVES FILING DATES BACK FROM PREVIOUSLY RELEASED OCTOBER VISA BULLETIN

    by


    On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals to file adjustment of status applications in the United States or visa applications overseas once their filing dates are listed on a separate chart on the monthly Visa Bulletin, "Dates for Filing Applications." In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications that would result in green cards. The filing of an adjustment application affords significant benefits such as work authorization, travel permission, the ability to exercise job mobility as well as the ability to protect the age of a child under the Child Status Protection Act. With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for ...
    Published on 09-25-2015 01:33 PM

    THE NEW VISA CHARTS – A PRIMER IN INTERPRETING THEM, HISTORICAL PERSPECTIVE, USE IN FORECASTING DEMAND, HOW THE NEW SYSTEM WILL WORK, AND THEIR ADDITIONAL BENEFITS TO ALL. - Part 2 of 5.

    by


    Part 2 - Historical perspective

    The Visa Office has historically been half blind in assessing visa demand, operating on incomplete data and educated guesswork as to how many people will be immigrating in the different categories. As a result, visa movements in categories have up to now oscillated wildly with startling advances and earth shattering retrogressions in available dates and even gone to “unavailable”, the death knell for those seeking to file an I-485 or have ...


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