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Carl Shusterman's Immigration Update

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  1. The July 2013 Visa Bulletin, and Beyond

    The July 2013 Visa Bulletin contains good news for those waiting in line under the worldwide employment-based third category (professionals, skilled and unskilled workers). The category advances another 4 months in July. The waiting time is now 4 1/2 years, down from 6 years just a few months ago. In contrast, the India EB-3 priority date advances only 2 weeks. The EB-3 category for the Philippines moves ahead only 1 week.

    The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 3 weeks, EB-2 India does not move at all.

    The Senate CIR bill would eliminate all per-country EB quotas. Write your Senators and Representatives now, and ask them to support this important modification to our broken immigration system!

    The worldwide family-based preference 2A category moves forward 4 months and the 2B category advances almost 4 months. Other worldwide family-based categories advance between 3 and 5 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 6 months. Family-based waiting times for Mexico advance significantly for both the 2A and the 2B categories.

    The charts below tell the story in more detail:


    FAMILY CATEGORIES


    Categories Worldwide China (PRC) Mexico Philippines
    1st 6-1-06 6-1-06 8-22-93 7-1-00
    2A 10-8-11 10-8-11 9-1-11 10-8-11
    2B 11-1-05 11-1-05 11-1-93 12-22-02
    3rd 10-1-02 10-1-02 4-22-93 11-22-92
    4th 5-22-01 5-22-01 9-22-96 12-15-89


    EMPLOYMENT CATEGORIES


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-8-08 9-1-04 Current Current
    3rd 9-1-09 9-1-09 1-22-03 1-1-09 10-1-06
    Unskilled 1-1-09 3-22-04 1-22-03 1-1-09 10-1-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current


    STATE DEPARTMENT PREDICTIONS


    VISA AVAILABILITY FROM AUGUST to OCTOBER


    FAMILY-sponsored categories (potential monthly movement)


    Worldwide dates:
    F1: Up to five weeks
    F2A: Could become "Current" at some point during the coming months.
    F2B: Four to seven weeks
    F3: Three to five weeks
    F4: Three to five weeks


    EMPLOYMENT-based categories (potential monthly movement)


    Employment First: Current


    Employment Second:
    Worldwide: Current
    China: Up to two months
    India: At this time it appears that the availability of "otherwise unused" Employment Second preference numbers will allow for movement of this cut-off date in August and/or September. It is expected that such movement will generate heavy new applicant demand, primarily by those who are upgrading their status from the Employment Third preference category. A sustained level of heavy demand could impact the cut-off date at some point during fiscal year 2014.[/TD]


    Employment Third:
    Worldwide: No additional movement. This cut-off date has advanced 18 months during the past three months. Such rapid movement can be expected to generate a significant amount of new demand, with the impact not being felt for three to five months. Therefore, the cut-off date will be held until it can be determined what level of demand is to be expected, and whether it is likely to be sustained.
    China: No additional movement
    India: Up to three weeks
    Mexico: No additional movement
    Philippines: Up to two weeks


    Employment Fourth: Current


    Employment Fifth: Current


    The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a "Current" projection will remain so for the foreseeable future.

    See the entire visa bulletin including information about the movement of the green card lottery numbers.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.
  2. CIR Bill Would Benefit Foreign-Born Physicians


    http://www.merritthawkins.com/uploadedImages/MerrittHawkins/Images/Gavel-Immigration%20Bill.jpg The pending Comprehensive Immigration Reform bill (S.744) would make significant and far reaching changes in the laws governing the immigration of foreign-born physicians to the United States. There would be beneficial changes to the J waiver program, H-1B status and the path to a green card would be smoother and faster.

    Most physicians obtain J-1 status to complete their graduate medical training in the United States. Upon completion of their training, these physicians must either return to their countries of origin for two years or obtain a waiver of this requirement, usually through sponsorship by an "interested government agency".

    Sponsorship is usually conditional upon the physician agreeing to practice for three years or more in a medically underserved area. Prior to 1994, only Federal agencies could sponsor foreign-born physicians for J waivers. In that year, Senator Kent Conrad of South Dakota introduced a bill which was signed into law which permitted States to sponsor 20 physicians per year for J waivers. This program has been extended numerous times, usually for 2 or 3 years at a time. In 2002, the number of J waivers under the Conrad program was increased to 30.


    Proposed Changes to the J Visas and Waivers


    The pending legislation would make the Conrad program a permanent part of the immigration law.

    J status for foreign-born physicians to complete medical residencies/fellowships would be classified as a "dual intent" status similar to H-1Bs and L-1s. A physician could no longer be denied J status on the ground that he did not intend to return to his country of origin.

    Spouses and children of J-1 physicians would no longer be subject to the two-year home residency requirement.

    The number of Conrad waivers available to a state could be raised in increments of 5 depending on the usage of waivers in various states during the previous year. In addition, the number of J waivers available to physicians working in academic medical centers outside of medically underserved areas could be raised by 3 per year under certain conditions.

    Physicians who received J waivers would no longer be required to work in H-1B status, but could work in any immigration status for which employment is authorized.

    In order to prevent foreign-born physicians from being exploited, J waivers would not be granted unless the physician's employment contract contained the following clauses:

    1) The amount of "on-call hours" per week and the compensation for such;

    2) The amount of malpractice insurance which will be provided to the physician and whether the employer will pay for this;

    3) All of the work locations, and a statement that the employer will not add work locations without the approval of the State or Federal agency requesting the waiver; and

    4) The contract may not contain a "non-compete" clause.

    If a physician's J waiver were denied under the Conrad program because the state had used up all of its slots for the year, the physician could obtain a 6-month work permit if he agreed to seek a J waiver from a state which has not used all of its J waivers. After that, the physician could extend his work permit from the time that the employer in the new state filed a Conrad waiver until the DHS either granted a change of status or denied the waiver application.

    If a J waiver physician's employment terminated before he completed the three-year period, he would not be considered to be out-of-status. Instead, he would be given 120 days to locate a new job in a medically underserved area and for his new employer to submit a petition for employment authorization on his behalf.

    The proposed law also provides that where the USCIS determines that "extenuating circumstances" exist, the physician could change employers during the 3-year required period of employment in an underserved area. This is important because some employers have taken unfair advantage of physicians who they have sponsored for J waivers. For example, some employers have failed to pay a physician at the prevailing wage or have insisted that a physician work outside of the designated medically-underserved area for 40 hours per week. If the physician does not claim "extenuating circumstances", he needs not only to complete the 3-year period in a medically underserved area, but also an extra year for each termination.

    Currently, the law provides that the physician must begin employment with a sponsoring employer within 90 days of receiving a J waiver. This requirement is impractical since it is impossible to predict when a waiver will be granted since it requires: (1) sponsorship by an Interested Government Agency; (2) approval by the U.S. Department of State; and ultimately, approval by the USCIS. If the USCIS approves the waiver too soon, the physician would have to start the job before his residency program or fellowship is completed.

    The proposed law would alter this requirement to provide that a physician must commence employment 90 days only after the latter of the following three dates:

    1) After the J waiver is approved;

    2) After completion of graduate medical education or training; or

    3) After receiving nonimmigrant status or an EAD.


    Proposed Changes to H-1Bs and Green Cards


    Where a physician completes his residency/fellowship in cap-exempt H-1B status, and an employer has submitted a cap-subject H-1B petition on his behalf, his H-1B status would automatically be extended to October 1st so that the physician does not become out-of-status or unemployable between July and

    October. However, if the physician's H-1B petition were rejected, denied or revoked, his status and employment authorization would terminate after 30 days.

    Physicians who qualify for National Interest Waivers (NIWs) by completing the 5-year service requirement in a medically-underserved area or for the Veterans Administration would be granted green cards without regard to numerical limitations.* This would occur whether a physician completed the 5-year requirement before or after the enactment of the CIR bill.

    The spouse and children of a physician would also be exempt from numerical caps whether the physician obtains a green card through an NIW or through PERM.

    Per-country limitations would be eliminated for the employment-based green card preference categories. This would dramatically reduce the time that it currently takes physicians born in India to qualify for green cards.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 02:05 PM by CShusterman

  3. June 2013 Visa Bulletin


    The Visa Bulletin for June 2013 contains great news for those waiting in line under the worldwide employment-based third category (professionals, skilled and unskilled workers).

    After advancing 5 months in May, worldwide EB-3 jumps forward 10 more months to September 1, 2008. In contrast, the India EB-3 priority date advances only 2 weeks. The EB-3 category for the Philippines moves ahead only 1 week.

    The worldwide EB-2 category remains current (no backlog), but while EB-2 PRC advances 8 weeks, EB-2 India does not move at all.

    The Senate CIR bill would eliminate all per-country EB quotas.

    Write your Senators and Representatives now, and ask them to support this important modification to our broken immigration system!

    The worldwide family-based preference 2A category moves forward almost 4 months while the F4 sibling category which remains at May 1, 2001. Other worldwide family-based categories advance between 3 and 7 weeks. Family categories for the Philippines advance somewhat faster especially the F1 category which sprints ahead 7 months. Family-based waiting times for Mexico barely advance at all.

    The charts below tell the story in more detail:



    FAMILY CATEGORIES


    Categories Worldwide China (PRC) Mexico Philippines
    1st 4-22-06 4-22-06 8-15-93 1-1-00
    2A 6-8-11 6-8-11 5-8-11 6-8-11
    2B 7-8-05 7-8-05 6-15-93 11-1-02
    3rd 9-1-02 9-2-02 4-1-93 11-15-92
    4th 5-1-01 5-1-01 9-15-96 11-8-89

    EMPLOYMENT CATEGORIES


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 7-15-08 9-1-04 Current Current
    3rd 9-1-08 9-1-08 1-8-02 9-1-08 9-22-06
    Unskilled 9-1-08 10-22-03 1-8-02 9-1-08 9-22-06
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current


    See the entire visa bulletin including information about the movement of the green card lottery numbers.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.
  4. Pathway to US Citizenship


    http://r.b5z.net/i/u/10077145/i/daca-ead-300x206_ezr.png
    The Comprehensive Immigration Reform bill (S.744), introduced in the U.S. Senate in April 2013, creates a Pathway to Citizenship for over 11 million undocumented persons. (The bill is not law yet. To become a law, a bill must pass both the Senate and the House of Representatives and be signed into law by the President.)

    Below are the eligibility guidelines (in abbreviated form) for persons wishing to legalize their status, and then to apply for permanent residence and for U.S. citizenship.

    Eligibility for Registered Provisional Immigrant (RPI) Status:


    1. Must be unlawfully present in the U.S. either because of an illegal entry to the U.S. or because of a visa overstay
    2. Must have been present in the U.S. on December 31, 2011
    3. Continuous physical presence in the U.S. since that time
    4. Pass background check
    5. No convictions for felonies or for 3 or more misdemeanors
    6. Waivers available for certain criminal convictions
    7. Expunged offenses are not considered convictions
    8. Pay back taxes
    9. Pay filing fees and $500 fine
    10. Unlawful presence bars do not apply


    Registered Provisional Immigrant (RPI):


    1. Initially, status is valid for 6 years
    2. Includes person's spouse and children
    3. Work and international travel authorization
    4. Cannot be absent from the U.S. for over 180 days unless there are extenuating circumstances


    Renewal of RPI:


    1. New background check
    2. Regularly employed
    3. Must be continuously employed or must have resources equal to 125% of poverty guidelines unless RPI is a full-time student. Limited exceptions based on age and disabilities
    4. Pass English examination
    5. Pay filing fees and $500 fine
    6. Unlawful presence bars do not apply


    RPI to Green Card:


    1. After 10 years as RPI, may apply for adjustment of status
    2. Heightened income requirement
    3. Employment & family backlogs eliminated
    4. Border security triggers are met
    5. Pay filing fees and $1,000 fine
    6. Unlawful presence bars do not apply


    U.S. Citizenship


    1. May apply 3 years after obtaining green card


    DREAMer's - Special Benefits


    1. Came to U.S. prior to 16th birthday
    2. Completed high school in U.S.
    3. No maximum age
    4. May apply for RPI under DREAM Act
    5. May apply for green card after 5 years (includes persons granted*DACA)
    6. May apply for U.S. citizenship immediately after green card


    Agricultural Workers - Special Benefits


    1. Must make substantial commitment to agricultural work
    2. May apply for Agricultural Card
    3. May be Eligible for Adjustment of Status
      1. Fulfill Agricultural Card work requirements
      2. May apply for green card after 5 years
      3. Pay taxes
      4. No serious criminal record
      5. Pay filing fees and $400 fine


    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 01:40 PM by CShusterman

  5. CIR Bill Would Create New Family-Based System


    http://i41.tinypic.com/rhpcb5.jpg
    The Comprehensive Immigration Reform bill which was introduced in the Senate in April 2013 would make significant changes in the existing family-based immigration preference system.

    The number of family-based preference green cards would fall from 226,000 to 161,000 annually. However, by expanding the immediate relative category, the bill would increase family-based immigration. In addition, all unused family-based numbers from fiscal years 1992 to 2013 would be added to the fiscal year 2015 quota which starts on October 1, 2014.

    The worldwide level for family-based immigrant visas would be allocated as follows:

    1) Unmarried sons or daughters of U.S. citizens - 35%

    2) Married sons or daughters of USCs under 31 years of age at the time of filing - 25%

    3) Unmarried sons and daughters of LPRs - 40%

    Persons in the 2A preference category (spouses and children of lawful permanent residents) would be added to immediate relative category (joining parents, spouses and children of U.S. citizens) and would not be subject to numerical restrictions. If they entered the U.S. lawfully, they would be permitted to apply for adjustment of status even if they overstayed their temporary status or worked without authorization.

    The bill would allow the derivative beneficiaries of immediate relatives to obtain permanent residence along with the principals. Example: Currently, if an adult U.S. citizen sponsors his parents and his 10-year-old sister for green cards, only the parents are considered immediate relatives and may immigrate without numerical limitations. The sister must be petitioned under the 4th preference category and is subject to the numerical restrictions. She will be separated from her parents and will have to wait many years to qualify for a green card. Under the bill, the sister would be considered a derivative beneficiary of her parents and would be able immigrate together with them.

    The per-country cap would be raised from 7% to 15%. This would greatly benefit persons born in the Philippines and Mexico who currently are subject to the longest family-based waiting times.

    The bill would restrict the filing of new petitions under the 3rd preference category (married sons and daughters of U.S. citizens) so that parents would be limited to sponsoring only their married sons and daughters who are 30 years old or younger on the date that the petition is filed with the USCIS.

    The bill would completely eliminate the filing of new petitions under the 4th preference category (brothers and sisters of U.S. citizens).

    Since these changes only apply to future petitions, if you are a U.S. citizen, the time to sponsor your married sons and daughters and your brothers and sisters is now before the bill becomes law.

    Currently, stepchildren are allowed to be sponsored only if the marriage creating the stepparent relationship occurred before the child's 18th birthday. The bill would change this to the child's 21st birthday. Also, the age requirement for an adopted child is raised from 16 to 18.

    Children who age-out of derivative beneficiary status after performing the calculation specified in the Child Status Protection Act would retain the priority date of the original petition and would automatically convert to the 2B category as soon as their parents are admitted as permanent residents.

    In addition, the bill would allow the following beneficiaries of approved family-based petitions to obtain "V" visas to live and work in the U.S. while waiting for their priority dates to become current:

    1) Unmarried adult sons and daughters of U.S. citizens and permanent residents; and

    2) Married sons and daughters of U.S. citizens who were 30 years old or less when the petition was submitted.

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    Updated 12-02-2013 at 01:46 PM by CShusterman

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