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    by , 04-11-2011 at 06:58 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Chris Musillo

    The Department of State has just released the May 2011 Visa Bulletin. This Visa Bulletin had small progress in several classifications. Notably, the India EB-2 date moved two months.

    May 2011 Visa Bulletin

    All Other Countries



    The Bulletin also included a lengthy explanation and prediction of future month's expected dates:

    Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain "Current" for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:
    Employment Second: Demand by applicants who are "upgrading" their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such "upgrades" are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of "otherwise unused" numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the "upgrades" will ultimately impact the cut-offs for those two countries. (The allocation of "otherwise unused" numbers is discussed below.)
    China: none to three weeks expected through July. No August or September estimate is possible at this time.
    India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.
    Employment Third:
    Worldwide: three to six weeks China: one to three weeks India: none to two weeks Mexico: although continued forward movement is expected, no specific projections are possible at this time. Philippines: three to six weeks
    Please be advised that the above ranges are estimates based upon the current demand patterns, and are subject to fluctuations during the coming months. The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced.
    Read the full Healthcare and Immigration Law Blog at or
  2. Migration Policy Institute Conference

    The Migration Policy Institute, Catholic Legal Immigration Network, Inc. (CLINIC) and Georgetown University Law Center will be hosting the 8th Annual Immigration Law and Policy Conference on April 26, 2011 in Washington, DC.  The topics include the following:
    Devolution of Immigration Authority: The Role of States in Immigration Enforcement and Policymaking
    The Final Arbiters: When Immigration Policies Come Before the Courts - The panel will examine and debate the prospects and possible outcomes of litigation involving some critical issues in the current political debate: challenges to the Fourteenth Amendment's guarantee of birthright citizenship, right of basic public education under Plyler v Doe, and the extent to which states and localities can enact laws affecting the foreign born.
    State and Local Agencies & Immigration Enforcement: Growing Role, Growing Questions - This panel will examine the federal/state partnerships related to immigration enforcement, including a discussion of 287(g) agreements and Secure Communities, the increasing role played by state and local law enforcement, and the impact of these federal and state immigration measures, including local community perspective.
    Detention Reform:  Standards, Alternatives, and Vulnerable Populations -
    This session will discuss DHS detention reform efforts, challenges to reform, civil detention standards, alternative detention models, alternatives "to" and alternative "forms" of detention, the treatment of particularly vulnerable populations, and legal challenges to the US detention regime.
    Right to Counsel: New Ideas and Opportunities for Indigent Defense - This panel will examine whether there is meaningful opportunity to expand legal counsel for indigent persons in removal proceedings, and what those vehicles may be.  It will also discuss recommendations to law and policymakers set forth by different groups for ensuring access to counsel.
    I have attended several of these conferences in years past, and they are always very worthwhile, not just for the topics and the speakers (all of whom are top notch), but also for the opportunity to meet many interesting people in the field.  If you can come to DC to attend this conference, I highly recommend it.  To register, visit the MPI website, here (by the way, registration is $50 before April 22; on-site registration is $60). 

    by , 04-10-2011 at 08:02 PM (Greg Siskind on Immigration Law and Policy)
    Guest poster Legal and Still Waiting has kindly summed up the movement this month.
    Family 1st - ROW, China and India are unchanged at 01 May 04; two week advance for Mexico and three and a half months advance for Philippines - we saw same kind of movements for Mexico and Philippines last month as well.
    Family 2A - ROW, China and India have advanced 9 weeks to 08 June 07; Mexico advanced to 6 months to Jan 2007; Philippines advances 9 weeks to 08 June 07.
    Family 2B - world numbers, India and China stalled at 15 April 2003; Mexico advances two weeks to 01 Aug 92 and Philippines advances three months to 01 Mar 2000.
    Family 3rd - most countries, China and India advance 6 weeks to 01 May 2001; Mexico advances one week to 15 November 1992; Philippines advances 6 weeks to 15 February 92.
    Family 4th - most countries advance 5 weeks to 08 March 2000; China advances 3 weeks to 22 Jan 2000; India advances 5 weeks to 08 March 2000; Mexico advances two weeks to 15 February 1996; Philippines advances to 1 month to April 08 1988.
    Employment 1st - still current in all categories
    Employment 2nd - most countries still current; one week advance for China to 01 Aug 2006 and India advances 7 weeks to 01 July 2006.
    Employment 3rd - one month advance for ROW to 22 Aug 2005; 6 weeks advance for China to 15 April 2004; one week advance for India to 15 April 2002;  Mexico jumps four months to 08 Sept 2004; one month advance for Philippines to 22 Aug 2005.
    Employment 3rd Other Workers - most countries advance six weeks to 08 Sept 2003; China still stalled to 22 April 2003; India advances one week to 15 April 2002; Mexico advances 6 weeks to 08 Sept 2003; Philippines advances 6 weeks to 08 Sept 2003.
    Employment 4th - still current in all categories
    Employment 5th - still current in all categories   
  4. May 2011 Visa Bulletin: Visa Numbers Inch Ahead

    The substantial advances predicted for the EB-2 India category failed to materialize in May, and absent legislative action, we don't believe there will ever be a significant forward movement in this category. Why? The reason is simple: do the numbers.

    First, the good news. EB-2 India advanced for the first time since last September, but only by seven weeks. EB-2 China advanced as well, but only three weeks. Both EB-2 India and China will continue to advance each month this fiscal year. Why? Since the State Department predicts that the 140,000 numbers allocated to EB applicants will not be used this fiscal year, the law allows the seven percent limitation for both countries to be waived.

    Now, the bad news. The forward movement of EB-2 China and India will only be a few weeks each month. Last month, the State Department announced that there were over 12,000 unused EB-1 numbers which will be added to the normal EB-2 allocation this fiscal year. However, there are over 17,000 persons with 2006 priority dates with pending applications for adjustment of status in the EB-2 category. Over 13,000 of these persons were born in India, and over 4,000 of them were born in China. This means that even with the addition of 12,000 extra numbers, no one from China or India with a priority date subsequent to 2006 will receive a green card this fiscal year.

    Leaving the EB-2 category aside, what was the story for the family categories and the other employment-based categories?

    Family Categories

    Two of the worldwide family categories (1st and 2B) failed to move in May, while the others advanced modestly, betweeen five and nine weeks. The biggest move occurred in the Mexican 2B category which advanced six months. Good news for the Philippine family categories which advanced between one month to over three months.

    Emloyment Categories

    The worldwide EB-3 category for professionals and skilled workers advanced four weeks while the worldwide EB-3 category for unskilled workers moved forward six weeks. The most significant advance was in the Mexican EB-3 category for professionals and skilled workers which moved forward four months.

    For the complete story, see the following charts:


    Categories Worldwide China (PRC) Mexico Philippines
    1st 5-01-04 5-01-04 3-1-93 7-15-95
    2A 6-08-07 6-08-07 1-01-07 6-08-07
    2B 4-15-03 4-15-03 8-1-92 3-01-00
    3rd 5-1-01 5-1-01 11-15-92 2-15-92
    4th 3-08-00 1-22-00 2-15-96 4-08-88


    Categories Worldwide China (PRC) India Mexico Philippines
    1st Current Current Current Current Current
    2nd Current 8-01-06 7-1-06 Current Current
    3rd 8-22-05 4-15-04 4-15-02 9-08-04 8-22-05
    Unskilled 9-08-03 4-22-03 4-15-02 9-08-03 9-08-03
    4th Current Current Current Current Current
    Religious Current Current Current Current Current
    5th Current Current Current Current Current

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  5. PERM: Alien not qualified to Adjust Status!

    by , 04-10-2011 at 07:27 PM (Joel Stewart on PERM Labor Certification)
    Every week there are many new horror stories about PERM cases.
    Attorneys like to blame the DOL whenever possible, but the fact is that some of the attorneys are not qualified to accept PERM cases because they have not studied the regulations or do not have a background in general immigration law principles.
    This week a gentleman from Indonesia consulted with me about his PERM case. He works as an Asian chef in a Florida restaurant and wants to obtain permanent residency.
    However, his story starts about 10 years ago, before PERM was enacted in March of 2005.
    He came to the US in legal status, but thereafter became illegal, in 2002, had to register for NSEERS special registration, the US government program to register male aliens from countries with Muslim majorities in the population. After registering, he was referred to deportation court, because he had been out of status at the time of registration.
    This particular Indonesian is a Christian. He alleged fear to return to Indonesia, where he could be persecuted.
    He requested asylum from the immigration judge, and was denied, but nevertheless the judge granted him "withholding." This status enabled him to stay in the U.S., but without the possiblity to apply for residency, citizenship, travel out of the US  or to convey any immigration benefits to other family members.
    Naturally he would like to become a permanent resident, so when a friend referred him to a lawyer he was advised to file a PERM case as an Asian cook. The lawyer said the PERM case would be difficult, but that with luck their PERM case could be approved, and after that he could become a permanent resident alien.
    Now, four years later the alien does have an approved PERM case and an approved I-140 Immigrant Visa Petition, and is waiting on the quota to receive a green card.
    But when he came to see me on a separate matter, I asked him about his immigration stauts and, unfortunately, had to give him some very bad news. Since he was granted Withholding, he cannot adjust status to a permanent residency visa,  such as a 3rd preference Asian cook.
    The reason is that he has an order of deportation -- by definition, all aliens granted withholding have to have an order of deportation first -- and with this order, he can not "adjust status" to permanent residency. He can only obtain residency by leaving the country, but then he has to wait abroad for ten years because he has been ordered "deported".
    Furthermore, he was out of status for many years after his tourist visa expired and is therefore subject to unlawful presence, which also carries a penalty of 10 years banishment.
    The client was very surprised, since he thought that with an approved PERM, he would just wait for his priority date to become current.
    There are some other possibilities in his case, but nothing to do with PERM. He has a child born here in the US, and in some shape or form this equity may enable him to apply for some other form of relief in the future, although to cure unlawful presence, he needs a parent or spouse legalized in the US. An American child will not suffice.
    Meanwhile, the PERM case, and the approved I-140 will come to naught. I fear that there are many other persons who have approved PERM case but are not qualified to receive a green card!
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