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  1. The Family 2A Category Rocks!


    http://www.clker.com/cliparts/E/t/r/m/k/6/cheering-shadow-family.svg Many of our clients have been crying tears of joy because of the September Visa Bulletin. The best news is the advance in the family-based 2A category. Just one year ago, the wait exceeded five years. Now, the wait is down to just 8 months!

    This is very important to persons who were granted green cards under the EB-3 category before the retrogression, and who have been waiting for years for their spouses/children to "follow to join" them.

    Last week, I spoke to a nurse who got her green card in 2007 based on her 2006 EB-3 priority date. She has been separated from her children for years. They are waiting for her EB-3 priority date (2006) to be current, an event which is probably at least two years away. I let her know that we could obtain immigrant visas for her children in less than one year using the family-based 2A category
    if we submitted I-130 visa petitions for them. She is thrilled.

    Below is the letter that we have sent to some of our EB-3 clients advising them of the significant forward movement of the 2A priority dates and how it affects their families:

    "Our records indicate that you were granted permanent residence in _______________. Since that time, the EB3 category has become increasingly backlogged. As a result, many dependent spouses and children who were not processed at the same time as the principal were left behind and have still not received their green cards. Unfortunately, because of the backlogs, we cannot predict how long it will take for a visa number to become available to your family member even though they have the same priority date as yours.

    "We are writing to remind you that as a permanent resident you may file an immigrant visa petition (Form I-130) for your spouse or children under 21 years of age at any time. There are waiting times/backlogs associated with such petitions as well. However, they may be much shorter than the EB3 category which is backlogged to December 15, 2004.

    "Spouses of permanent residents, and children under 21 years of age, are in the second family category called F2A. As of September 2010, people in the F2A category with priority dates of January 1, 2010 or earlier are now eligible for permanent residence. So you can see that the F2A category is backlogged until 2010, which is better than 2004 for EB3.

    "The priority dates for family and employment categories are listed on the State Department's monthly Visa Bulletin and can be accessed at


    "Depending on how quickly the EB3 category moves forward, it may be faster to sponsor your family member in the F2A category.

    "Please keep in mind that you will be eligible for naturalization 5 years from the date when you got your green card. You may apply for naturalization 90 days before your 5th year of permanent residence. Spouses of U.S. citizens, and children under 21, are called "immediate relatives" and are not subject to the backlogs. Thus your eligible family members would be immediately eligible for a green card once you become a citizen and file an I-130 petition for them, wherever they are.

    "If you naturalize after filing an I-130 petition on behalf of your family member(s), you can ask for the petition to be "upgraded" from the F2A category to immediate relative status. This will take your family member(s) out of the backlogs and speed up the process.

    "I hope this information is helpful for you and your family, and allows you to be proactive in keeping abreast of your priority date/s. Feel free to contact our office if you have any questions or require assistance."
    Sincerely yours,

    Carl Shusterman

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

    Updated 12-02-2013 at 04:29 PM by CShusterman

  2. GONE FISHIN'

    by , 08-28-2010 at 07:14 PM (Greg Siskind on Immigration Law and Policy)
    While the shift to focusing on deporting criminals rather than workers makes sense, some anti-immigrant officials are really stretching the term "criminal" in terms of who is being targeted. The Knoxville News reports that 27 people in Nashville caught fishing without a license ended up in deportation proceedings. I know I feel safer. Don't you?
  3. THE AGE CONUNDRUM

    by , 08-28-2010 at 01:42 PM (Greg Siskind on Immigration Law and Policy)
    Vivek Wadhwa writes a piece that while not about immigration, certainly is relevant to the debate regarding skilled worker immigration. He discusses the ruthless beast that is the high tech world when it comes to how older engineers are treated and why the industry simultaneously faces a shortage and a surplus of talent. Regardless of whether immigrants are in the picture or not, the questions regarding how best to address the career problems faced by older tech workers are serious and difficult. When we can get our hands around this issue, we might be able to start making decisions on skilled worker immigration that meet the country's long term needs.
  4. Dealing with 'the Reality of What Is': The GOP Quandary over Immigration

    by , 08-28-2010 at 10:22 AM (Angelo Paparelli on Dysfunctional Government)
    "I'm having to deal with the reality of what is. You can't wish it away. What is, is." So says a glum Ohio Democrat, Governor Ted Strickland, according to reporter Laura Meckler in this weekend's edition of The Wall St. Journal ("Democrats Face Economic Facts: Updraft Unlikely"). Meckler's article reports on the prospect that Democrats "will lose their majority in the House," citing two nonpartisan election handicappers, the Rothenberg Political Report and the Cook Political Report.
    What would shared power portend for immigration reform if the GOP took control of one or both houses of Congress?  Before that question can be answered, Republicans must first resolve conflicting policy arguments among themselves. 
    Last night, conservative talk show host Laura Ingraham (and Kerry-like flip-flopper, "I was for the Ground Zero Mosque before I was against it") subbing for the eponymous host of the O'Reilly Factor, highlighted the tensions on immigration within the Party of Lincoln. In a segment entitled "Is the Tea Party Toxic for the GOP", Ingraham confessed that she found it hard to distinguish immigration policy sentiments of "influential conservative" Michael Gerson, a former Bush speechwriter, from those of former Democratic Party Chairman, Howard Dean, and über-liberal, MoveOn.org. 
    Gerson's jousting with Ingraham was prompted by his recent Op-Ed piece in the Washington Post, in which he worried aloud about the Tea-Party leanings of the GOP on immigration:

    A . . . question of Tea Party candidates: Do you believe that American identity is undermined by immigration? An internal debate has broken out on this issue among Tea Party favorites. Tom Tancredo, running for Colorado governor, raises the prospect of bombing Mecca, urges the president to return to his Kenyan "homeland" and calls Miami a "Third World country" -- managing to offend people on four continents. Dick Armey of FreedomWorks appropriately criticizes Tancredo's "harsh and uncharitable and mean-spirited attitude on the immigration issue." But the extremes of the movement, during recent debates on birthright citizenship and the Manhattan mosque, seem intent on depicting Hispanics and Muslims as a fifth column.
    There is no method more likely to create ethnic resentment and separatism than unfair suspicion. The nativist impulse is the enemy of assimilation. In a nation where minorities now comprise two-fifths of children under 18, Republicans should also understand that tolerating nativism would bring slow political asphyxiation.
    Tolerating or opposing nativism is not the only irreconcilable immigration difference within the GOP.  In the immigration sphere, Republicans must decide if they are for or against: (1) protectionism, (2) small-business entrepreneurship, (3) intrusive government regulation, and (4) higher taxes. The posts linked in the preceding sentence suggest that these seemingly easy questions are surprisingly difficult to answer for a party that loudly proclaims its allegiance to free-market capitalism. 
    Setting aside their policy differences over how best to tackle the problem of illegal immigration, Republicans must decide whether they will push for reforms of the system of legal immigration that foster rather than impede economic prosperity.  They must decide whether (a) Sen. Chuck Grassley (R. IA), who sides with Sen. Dick Durbin (D. IL), in opposition to the H-1B and L-1 work visa categories, will be their standard-bearer on employment-based immigration, or (b) the GOP will at last heed the long-repeated warnings of business leaders who foretell a deepening slide in our global competitiveness unless more innovation-friendly immigration policies are quickly enacted.
    Republicans cannot have it both ways on immigration.  They cannot remain silent when American Apparel, a company that has insisted on producing goods within the U.S. using domestic workers, reportedly suffers a sharp decline in stock price by the loss of a huge chunk of its workers because the federally-imposed system of employment-eligibility verification is broken, as Fast Company and the L.A. Weekly report. (WARNING: Those with Victorian sensibilities should NOT click on the Fast Company link and instead check out L.A. Weekly, while more worldly readers who'd like a new answer to the perennial presidential campaign question, "Boxers or briefs?, may run with Fast Company.)
    Republicans will not win over many Mama and Papa Grizzlies, or their voting-age cubs -- especially those working in the Human Resources departments of companies owned by members of any political party -- if the immigration laws now in force treat them like (gender-irrelevant) "fall guys." As Ted Chiappari and I note in this week's New York Law Journal ("Lawbreaker, Naïf or Stooge? - The HR Representative and I-9 Crimes"):

    While large-scale foreign-national employee prosecutions and removals in connection with worksite raids under the Bush administration attracted more publicity, the number of criminal prosecutions of business owners and managers also increased. The Obama administration has moved away from high-profile worksite raids, favoring instead "audits" (called "silent raids" by some) that in effect force employers to terminate the employment of unauthorized workers. Even so, Homeland Security Secretary Janet Napolitano in her Senate confirmation hearings also pledged "appropriate criminal punishment" for "unscrupulous employers." So, regardless of which party is in office, employers and their human resources representatives have to be aware of potential criminal liability. (Footnotes omitted.)
    The GOP would be wiser to consider another alternative than criminalization of employers under the immigration laws, perhaps something like the New Employee Verification Act (NEVA), a bill sponsored and defended by Rep. Sam Johnson (R. TX) that has been languishing since first introduced in April 2009. NEVA would take the onus of employment-eligibility verification off the backs of business and place it rightfully on the government (or authorized third-parties).
    However the Republicans resolve their multiple-personality disorder on immigration, if they succeed in taking the House, they should use their newfound authority wisely and in the best interests of the nation.  Rep. Darrell Issa (R. CA) would chair the House Oversight Committee, and wield the power to convene hearings, including sessions on the administration of our immigration laws.  Rather than Obama-Administration witch hunts, as many fear, perhaps Rep. Issa will use his hoped-for new authority to ask what Republicans and surviving Democrats can do -- in legion with the Obama Administration -- to make the system of legal immigration a jump-starter for America's economy.
  5. H-1B REQUESTS FOR EVIDENCE HAVE DOUBLED IN THE LAST YEAR

    by , 08-27-2010 at 07:27 PM (Greg Siskind on Immigration Law and Policy)
    This is a detail from the June USCIS Ombudsman report I hadn't noticed before, but a BusinessWeek report this week highlights that fact. We immigration lawyers have sensed that this was the case, of course. We regularly warn clients now to simply expect them even if the case is air tight. Businessweek reports
    The U.S. Citizenship & Immigration Service says no crackdown is afoot. 'We haven't changed the way that we do our business over the course of the past few years,' says agency spokesman Christopher Bentley.
    Of course, the statistics show otherwise. One very senior former USCIS confided in me that he believes this is less about an anti-immigrant mood at USCIS and more about simple job security. The overall number of applications being filed at the agency is down dramatically due to the recession and issuing requests for evidence is one for examiners to keep themselves busy.
    I have no doubt that this is happening. The evidence requests are themselves the best evidence of what should be considered gross malfeasance on the part of USCIS examiners. Applicants routinely get request for documents that were provided already or are clearly irrelevant. In premium processing cases, evidence requests often come on the last day USCIS has to adjudicate the case. Enticing people to pay an extra $1000 to get speedy processing and then deliberately delaying their cases is a form of fraud - perhaps theft - in my opinion. USCIS should be regularly auditing evidence requests and also soliciting feedback from the applicant community so it can crackdown on such illegal behavior.
    One simple way to cut down on this kind of behavior is to identify USCIS examiners by name in their decisions. Operating in anonymity only encourages this sort of wrongful conduct. I've heard a senior USCIS official defend anonymous decisions saying that examiners safety might be threatened if they were named. Of course, local USCIS officials operate openly in a variety of immigration cases - marriage petitions, naturalizations, etc. - and there is no evidence of a problem.
    I told a USCIS public liaison official that in all my years of practice, I've never seen less professionalism in the way service center officials are doing their jobs. She seemed stunned to hear this and perhaps her reaction was genuine, but if so it's hard to believe how out of touch she was.
    Hopefully, the message is starting to get through. The California Service Center has been out of control for some time and only in the last few months has headquarters stepped in, fired the senior staff, sent senior staff from Washington out to California and finally started to address the adjudications probelms.
    Here's hoping this is the beginning of a nationwide new trend.
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