We applaud President Obama’s announcement of  broad executive action to offer temporary relief from deportation to millions of undocumented immigrants, stating that the separation of families or the oppression of low-wage immigrant workers is “not who we are as Americans.”

Concurrent with the televised nationwide presidential address last night, the Department of Homeland Security (DHS) Secretary issued a series of memoranda outlining the various facets of the programs and policies which would constitute, in total, “executive action” relating to immigration matters such as:  Revising Removal Priorities, ending Secure Communities and replacing it with a New Priority Enforcement Program, expanding DACA, extending DACA to Parents of US citizens and Permanent Residents, revising parole rules, expanding Provisional Waivers to spouses and children, modernizing high-skilled business-related immigration, and more.  We link to this information above.

Additional specific information on the initiatives contained in the Executive Action taken by President Obama can be found here

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.  Refer to AC 21 12/27/2005 Aytes Memo for details.

Proposal to Enhance Opportunities for Highly-Skilled Workers: H-1B1 (Chile and Singapore) and E-3

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer.

• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.  We will keep you posted on next steps when this actually becomes effective.

The DHS Press Release

This new process allows certain immediate relatives of US citizens who are physically present in the USA and are seeking permanent residence, to apply for and receive provisional unlawful presence waivers BEFORE departing the US for consular processing of their immigrant visa applications abroad.

The benefit of this is that it will reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa. Immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

• Is physically present in the United States;
• Is at least 17 years of age;
• Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
• Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
• Is not subject to any other grounds of inadmissibility other than unlawful presence; and
• Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

• Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
• Is subject to a final order of removal or reinstatement of a prior removal order;
• May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
• Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

• Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
• Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
• The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

For additional information,we link to the I-601A Questions and Answers document.

Should you wish to become a client of our office, please contact us.

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On 10/27/11, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On 11/29/11 the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

Sen. Charles Schumer, D-N.Y., who heads the Senate Judiciary panel on immigration, said he planned to move the bill as quickly as possible in the Senate, “where we expect it to find overwhelming support.” He said the legislation would “remove outdated constraints that prevent us from attracting the kind of innovators who can create job growth in America.”

Crystal Williams, executive director of the American Immigration Lawyers Association, said the measure “makes the system a tiny bit fairer” and does “demonstrate that Congress can do something on immigration, however small.”  She cited estimates that while someone from England might wait two or three years for a green card, an Indian could conceivably be on the waiting list for decades.

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries. HR 3012 will eliminate, over a three year period, the per-country limit in the employment-based system, but it will not raise the number of legal immigrants allowed to enter the USA.

We will keep you posted on developments as this bill moves to the Senate.  We link to an excellent article on the subject.

1. Want to stay in touch?  The InFOCUS Immigration Solutions August newsletter is available for your viewing here.
2. We link to an interesting letter to President Obama on Immigration Reform that says it all very well
3. USCIS to permit EAD (Employment Authorization Documents) to be expedited through the Nebraska Service Center (NSC) if they have been p ending for more than 60 days under particular circumstances.  Please contact our office for more information on this should you require assistance with expediting your case.
4. Department of State announces that they will phase in the implementation of an online, electronic Immigrant Visa form, the DS-260 that will eventually replace the DS-230 form. Federal Register 75 FR 45475.
5. Just yesterday, the US Senate passed a border security spending bill containing a provision that will be paid for by increasing fees for employers that have a large H-1B or L-1 foreign worker presence in their workforce. Specifically, the bill would increase total filing and fraud prevention fees by an incredible $2000 or more for petitioners with a U.S. workforce of more than 50 percent H-1B or L-1 nonimmigrants. The provision would be applicable to employers with 50 or more employees in the United States. The bill would also provide $600 million in emergency funds to increase security along our borders with Mexico by hiring more than new 1,000 border patrol and immigration enforcement officers, and increasing unmanned drone surveillance operations in the region.  For more on this
6. The USCIS will start receiving email inquiries on I-90 and N-400 forms if the wait time has exceeded the designated processing times.
7. The Department of Labor (DOL) bans the Asian Journal from the H-1B Program and agrees to pay $516, 500 in back pay to 32 employees plus a $40,000 penalty.

:::::::::::::::::::::

Immigration Solutions has thousands of worldwide subscribers interested in our news and services who are visiting our website and Blog daily.  We invite you to take advantage of this additional targeted exposure and strongly consider advertising your product or service with us.  Contact us through our website or give us a call to discuss your needs and advertising requirements.  We’ll walk you through a very affordable process that will give you the extra edge that you’re looking for.

The most significant movement in the EB (employment-based) Visa Bulletin for July 2010 is that the India EB-2 classification for professionals with Advanced Degrees or persons of Exceptional Ability advanced 8 months – from February 1, 2005 to October 1, 2005.

Further, the Department of State released some “best case scenario” predictions of where the Visa Bulletin dates might be at the end of fiscal year 2011,  (as of October 1, 2010) as follows:

Employment First: Current
Employment Second:  China and India: March or April 2006

Employment Third:

Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Mexico: Unavailable
Philippines: June through September 2004

If this comes to pass, these predictions represent significant movement forward for many of the categories. We link to the July Bulletin here, and will continue to keep you updated.

Here is the current bulletin for June.  We additionally link to one of our earlier Immigration Solutions articles that explains how to interpret the Visa Bulletin.

As reported in Workforce Magazine

The lack of opportunities in the U.S. plus burgeoning business opportunities on their home turf are causing foreign workers to return to their native lands. Experts warn that the shift will force domestic firms to compete with their one-time workforce as they open their own companies in their native countries.

A 2009 survey by financial firm HSBC revealed that 23 percent of expats in the United States and 44 percent in the United Kingdom were considering going home because of the global economy. Although they originate from several countries, these expats from the U.S. and U.K. cited limited career prospects as the top reason for returning home.

Back in the U.S., the story is particularly startling, with one expert contending that the tide of expats heading home has reached historic proportions.

“For the first time in American history, expats are leaving,” says Vivek Wadhwa, senior research associate with the Labor and Worklife Program at Harvard Law School. “For the last decade or so, there’s been a massive outflux of talent, particularly to India and China. These are typically skilled professionals in the prime of their careers.”

Wadhwa says between 50,000 and 75,000 Indian and Chinese professionals went back home in the last 20 years. Those numbers will soon more than double.

“There will be another 100,000 to India and 100,000 to China in the next five years,” he says. “These people are driving innovations in their home countries that will become competitors to America.”

A shortage of green cards is a major cause for Indians and Chinese, as well as Brazilians and Russians, to return home. “We have a 10-year backlog for green cards,” Wadhwa says. “There are more than one million skilled immigrants—about 35 percent Indian and 25 percent Chinese—who are waiting.

“When we start seeing the next Google coming out of India and China, and people realize these advances are coming from former expats, that’s when the alarm bells will go off,” Wadhwa says.

Many of these expats would like to stay, says Lynn Shotwell, executive director of the American Council on International Personnel, an organization advocating improved business immigration policies.

“The perception is that if we really wanted to change things, we would,” she says. “The question is, are we losing our edge? The ability to attract the best and brightest from around the world was always a big strength for the U.S. Now we’re pulling up the welcome mat.”

Thanks to the recession, companies are evaluating the costs of international assignments and the need to bring expatriates home. . “Before, companies felt they needed to send people [abroad] to open markets and transfer technology and culture,” says Scott Sullivan, executive vice president of Brookfield Global Relocation Services, an international, full-service relocation company. “Now there are lots of capable people in those countries who can perform those jobs. [Companies ask] if they really need to send people overseas or can we hire locally. This is a big dynamic in global business.”

The petitions of applicants who will be processed at an overseas US Consular post are forwarded by USCIS to the Department of State (DOS).  Applicants in categories subject to numerical limit are registered on the visa waiting list.  Each case is assigned a priority date based on the filing date of the initial petition.  There are about 3.5 million on this list.  This is positively disastrous when you consider that our current laws permit 376,000 people to immigrant to the USA each year under the family-based and employment-based systems, with the average wait being over 10 years long!

There are probably another 1 million in the USA waiting to adjust their status and these numbers aren’t even reflected in the DOS report.

About 95% of the people on the list are in the family-based categories and more than 1/2 of these are  in the brother-sister 4th preference category.  At the 65,000 number level for this category, this is a wait time that averages 10-26 years!

The total employment numbers waiting a priority date:  130,509 including 119,759 in the EB-3 category.  This is a 3-4 year wait, ignoring per country limits.  The countries with the largest backlogs are the Philippines (45,331 – mostly nurses and their families.  Yes, there’s something wrong with this picture!) and India (20,467 – mostly IT professionals and their families – something is wrong with this picture, too!).  Then we hear politicians and uninformed folks saying “get in line and wait your turn”  – like the line is actually moving!

It’s a sad state of affairs that points squarely at the fact that we must first focus on legal immigration reform – getting these wait times down to something reasonable.  Do we have any representatives courageous enough to vote for legal immigration reform so that we have a system that doesn’t punish people who play by the rules?

The January Visa Bulletin has extensive notes and interpretation for those of you who find it difficult to comprehend in re numerical control and cutoff dates and how they’re determined, how per country quotas are calculated, future projections and more.  We have made these Notes available to our readership.  For more

For questions concerning the visa bulletin and any immigration case issues that you require assistance with, please contact us.

Form I-140 Immigration Petition for Alien Worker is used to petition USCIS to classify an alien beneficiary as eligible for an immigrant visa (green-card) based on employment.  We link to the instructions