Editor: Greg Siskind. Associate Editor: Juan Portillo. Contributors: Juan Portillo.

Transcription

1 Siskind's Immigration Bulletin August 17, 2011 Published by Greg Siskind, partner at the Immigration Law Offices of Siskind Susser, P.C., Attorneys at Law; telephone: , ; facsimile: or , WWW home page: Siskind Susser serves immigration clients throughout the world from its offices in the US and its affiliate offices across the world. To schedule a telephone or in-person consultation with the firm, go to Editor: Greg Siskind. Associate Editor: Juan Portillo. Contributors: Juan Portillo. To receive a free subscription to Siskind's Immigration Bulletin, fill out the form at To unsubscribe, send your request to visalaw-unsubscribe@topica.com To subscribe to the free Siskind's Immigration Professional Newsletter, go to 1. Openers 2. ABCs of Immigration Law: K-3 and K-4 Visas 3. Ask Visalaw.com 4. Border and Enforcement News - U.S. and Mexico Resume Migrant Repatriation Flights - DHS: Backlog Records of 1.6 Million Foreigners Has Been Cut by Half - FBI Upgrades Database to More Quickly Deport Violent Immigrants - Drunken Driving, Traffic Crime Deportations Way Up - Immigration Fines Cost 14 New England Companies - Four Criminal Immigrants Plead Guilty to Bribing ICE Employee 5. News from the Courts - Judge Tosses Class Action Lawsuit Over Bungled Green Card Lottery - Indiana Won t Appeal Court Ruling Freezing New Immigration Law - Utah Attorneys Defend Immigration Enforcement Law 6. News Bytes - USCIS Announces End of Parole Program in Moscow - Agreements Reached Between the U.S. and the Russian Federation - CIS Ombudsman Issues Recommendations for Deferred Action - New US Visa Restrictions Placed on Iran - Suit Asks Officials to Stop Using DOMA Against Married Same-Sex Couples - Visa Delays Imperil Iraqis Who Helped U.S. - CA Rep. Seeks to End Diversity Visas - Border Fences Said to be Threat to Wildlife - More Mexicans Fleeing the Drug War Seek U.S. Asylum - Residency Proof for Immigrant Licenses - MA Gov. Backs Illegally Present Immigrants on Tuition - WA Cancels Driver s License of Journalist Who Disclosed Illegal Presence

2 - Rep. Luis Gutiérrez Arrested in Dream Act and Immigration Protest - California Enacts Law Letting Immigrants Pay In-State Tuition 7. Washington Watch - Democrats Accuse Rep. Smith of Hypocrisy - Mayor of Lewiston, Maine Testifies on Immigrants Impact - House Unanimously Amends Immigration and Nationality Act - House Passes H-1C Bill 8. Notes from the Visalaw.com Blogs 9. State Department Visa Bulletin: September USCIS Rolls Out Initiatives Designed to Promote Startup Businesses 1. Openers Dear Readers: USCIS has announced a series of changes and enhancements to various immigration programs that the agency believes will encourage entrepreneurship and enhance job creation in the US. That the Administration is thinking about using immigration policy to help promote job growth is indeed encouraging and the steps introduced are welcome. Changes are coming to the EB-1 multinational executive/manager category, the EB-2 national interest waiver category, the EB-5 immigrant investor category and the H-1B program. The changes are summed up in this issue of the newsletter. But while the changes are welcome, they re only likely to make a small dent in USCIS strong institutional bias against small businesses. That has been a problem years in the making and it will take strong and effective leadership from USCIS Director Alejandro Mayorkas, Secretary of Homeland Janet Napolitano, Secretary of State Hilary Clinton and Secretary of Labor Hilda Solis to really reform the administrative rules that thwart entrepreneurial enterprise and change the cultures at the agencies. While USCIS still has enormous problems across the board when it comes to adjudicating petitions, Director Mayorkas does deserve praise for opening up the lines of communication between the public and agency officials. Every week, USCIS is holding stakeholders meetings and teleconferences addressing major issues and getting feedback on how their policies are actually working. Whether the agency is making changes based on that feedback is not clear yet, but these meetings represent a step in the right direction. In firm news, three of Siskind Susser s lawyers - Greg Siskind, Lynn Susser and

3 Karen Weinstock - were named to US News and World Reports rankings of the top immigration lawyers in the United States. The rankings can be found online at Readers are reminded that they are welcome to contact my law office if they would like to schedule a telephone or in person consultation with me or one of my colleagues. If you are interested, please call my office at Regards, Greg Siskind 2. ABCs of Immigration Law: K-3 and K-4 Visas On December 21, 2000, the Legal Immigration and Family Equity (LIFE) Act amended the K nonimmigrant visa category to include the spouse and unmarried children of United States citizens. With this modification, the spouse and children of a United States citizen may be admitted to the United States as K-3 and K-4 nonimmigrants to complete their process for permanent residence. One of the principal benefits of K-3 and K-4 visas is that immediate families will be unified several months faster than if they were pursuing a typical immediate relative immigrant petition. How do I determine whether I am eligible for a K-3 or K-4 visa? To be eligible for a K-3 nonimmigrant visa, the individual must meet the following requirements: 1) Be the spouse of a United States citizen. 2) Have a pending relative petition, Form I-130 filed with the USCIS. 3) Have the intent to enter the United States in order to await the completion of the permanent residence process. 4) Have an approved Form I-129F, Petition for Alien Fiancé. This form shall be forwarded by the USCIS to the United States consulate where the spouse wished to apply for the K-3 visa. The consulate specified on the Form I-129F must be one of the following: a) If the marriage occurred outside of the United States, the consulate where the marriage took place, OR b) If the marriage occurred in the United States, the consulate with jurisdiction over the current residence of the alien spouse.

4 K-4 nonimmigrants are derivative beneficiaries of the K-3 nonimmigrant. To be eligible for the K-4, the applicant must be unmarried, under 21 years of age, and be the child of the principle K-3 visa applicant or holder. Separate Form I-130s and Form 1-129Fs are not required for the K-4 applicant. However, in order to ensure that there are no problems during the adjustment of status process, it is recommended that the children s I-130 be filed concurrently with the I-130 for the K-3 applicant. Where do I file the forms? The Form I-130 must be filed with the USCIS at the service center with jurisdiction over the residence of the United States citizen. The Form I-129F must be submitted in the following manner: If you are filing for your fiance(e), file this petition at the Service Center with jurisdiction over your area of residence. If you are filing for your fiance(e) and live outside the United States, submit this petition to the Service Center with jurisdiction over your last place of residence in the U.S. If you are a U.S. citizen, and are using this form to bring in your wife or unmarried child under the LIFE Act, file this petition at: U.S. Citizenship and Immigration Services P.O. Box 7218 Chicago, IL Do I have to apply for an adjustment of status? Obtaining the K visa and traveling to the United States does not complete the entire process for permanent residence. Once in the United States, each K-3/4 nonimmigrant must file a Form I-485, Application to Register Permanent Resident or Adjust Status, with the INS. These applications for adjustment of status can only be submitted after the spouse s Form I-130 has been approved by the Service. If a Form I-130 has not been completed for each of the K-4 children, the children must file a Form I-130 concurrently with their Form I-485. Am I allowed to work with a K-3 or K-4 visa? Both K-3 and K-4 nonimmigrants are eligible to obtain work authorization while their permanent residence application is pending. In order to apply for work authorization, individuals must submit a Form I-765, Application for Employment Authorization, with $175 to the Chicago address listed for the submission of the Form I-129F. Can I travel on a K-3 or K-4 Visa?

5 Once a nonimmigrant has been granted a K-3/4 visa, the individual may travel outside the United States and be readmitted with a valid K visa. How can my K-3 or K-4 status be terminated? These visas are no longer valid 30 days after one of the following: 1) Denial of the I ) Denial of Adjustment of Status. 3) A final divorce of the marriage. 4) A K-4 nonimmigrant turning 21 years old or marrying. 5) Approval of permanent residence for the K-3, thus terminating the derivative K-4 status. 6) The expiration of two years without a request for an extension of stay. 3. Ask Visalaw.com In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter. If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here. * * * 1) Question: I am U.S. citizen. My husband, a Mexican national, was living in the US for 10 years. I filed an I-130 petition for him, which was approved. Acting on advice from our immigration lawyer, he went to Mexico to obtain a visa. The lawyer said it would take a year. It turns out that this was bad advice. He was told by the consulate that he cannot come back to the US. I am not sure why. What can I do to bring him back to the US? Answer: As he was living in the US out of status for more than a year, he is barred from returning to the US for at least 10 years. He may be eligible for a waiver of this bar of inadmissibility if he can show that a denial of the waiver would result in extreme

6 hardship to you, his US citizen wife (qualifying relatives for this I-601 waiver of the unlawful presence bar include US citizen or Permanent Resident spouses and parents). If you filed this waiver application and it was denied because you didn t show enough hardship, then it may be that you can apply again with a stronger showing of hardship. Otherwise your husband will have to remain outside the US for at least 10 years before he can apply for a visa to return to the US. It is important to remember that he must document his time outside the US, so he should be saving documentation of his residence abroad during this time. However, if he has made multiple illegal entries to the US, he may be subject to a permanent bar of inadmissibility. This rule applies to someone who spends a year or more unlawfully present in the US, leaves the US, and then comes back into the US illegally. It also applies to someone who illegally enters the US after being deported. If this is what happened with your husband then he is permanently barred from receiving an immigrant visa to the US. In order for him to apply for a waiver of this inadmissibility, he must first stay outside the US for at least 10 years. If he does this then he can then be eligible to receive a waiver if he can show that a denial of the waiver would result in extreme hardship to you, his US citizen wife. Note to other readers: If you have ever overstayed a visa or entered the US illegally you need to consult with a trusted immigration law attorney (and maybe get a second opinion from another attorney) before you leave the US, even if you are the beneficiary of an approved petition. 2) Question: I currently hold a TN visa that expires in 2012, but my job contract ends before that time. I would like to know how long I can stay in the US looking for a new job. I know the TN visa is not transferable but I would like to know if the sponsor has an obligation to tell Immigration that I am no longer their employee. If so, how long can I stay holding the TN Visa? Is there any chance to change it to a tourist visa to allow me to stay while I look for a new job? Answer: The immigration laws do not provide a grace period for a TN. As soon as your TN position is terminated, you will be out of status and are expected to leave the US. However, you can apply for a change of status to B (visitor) status before your position is terminated. As long as the change of status is filed before your employment is terminated, you would then be authorized to remain in the US while USCIS is adjudicating your application for change of status. This could take a couple months. You would not be allowed to work during this time, but you would be allowed to interview for a new position. Your period of stay is only authorized while your application is pending, so if the application for the change of status to B is denied you would have to leave the US. 4. Border and Enforcement News: U.S. and Mexico Resume Migrant Repatriation Flights

7 Reuters reports the resumption of an annual program of voluntary repatriation flights to take Mexican illegally present immigrants nabbed in the Arizona desert back to their homes in the Mexican interior, authorities said. The U.S. Immigration and Customs Enforcement agency stated in a news release that the goal of the program is to save lives while disrupting Mexican human smuggling networks. The most common cause of death for the 249 people who perished after crossing into Arizona last year was heat exposure in the summer months. Participants are flown to Mexico City from Tucson International Airport. Once in Mexico, they are taken by bus to their hometowns html DHS: Backlog Records of 1.6 Million Foreigners Has Been Cut by Half ExecutiveGov reports that a department of Homeland Security official recently told a Senate panel the unchecked records backlog of 1.6 million potential visa overstays has been reduced by more than half. The US-VISIT program, a digital finger print system, has revealed 843,000 of the 1.6 million records belong to individuals who are no longer in the country or who have applied for a different visa status. FBI Upgrades Database to More Quickly Deport Violent Immigrants Nextgov.com reports that the federal government plans to use an upgraded FBI biometric database to identify dangerous undocumented immigrants for possible deportation more quickly and accurately, according to internal agency documents. The new Next Generation Identification system is meant to support the DHS Secure Communities Program with faster fingerprint processing times and increased accuracy. In cooperating cities it now takes police less than 20 seconds to compare the prints of a person they stop on the road to the 2 million sets stored in the database of terrorists, sex offenders and others. Civil liberties groups still express concern that quicker responses from the FBI will not resolve long-standing errors within DHS database. Drunken Driving, Traffic Crime Deportations Way Up The Associated Press reports that huge increases in deportations of people after they were arrested for breaking traffic laws helped the Obama administration set a record last year for the number of criminal immigrants forced to leave the country, documents show. The spike in the numbers of people deported for traffic offenses as well as a 78 percent increase in people deported for immigration-related offenses renewed skepticism about the administration s claims that it is focusing on the most

8 dangerous criminals. Immigration advocates worry about local law enforcement s greater involvement in immigration enforcement because of new programs that encourage it. Homeland Security Secretary Janet Napolitano told the AP that the percentage of felons deported will change over time, noting that the more serious offenders are still in prison. 13d0dea3fa f4aa115e0a16d8a Immigration Fines Cost 14 New England Companies The Boston Globe reports that following ICE audits of federal I-9 forms, fourteen New England companies were fined a combined $285,000 during the past fiscal year for failing to document that their workers were in the country legally, federal authorities announced yesterday. While none of the 14 companies appealed, some negotiated lesser fines; others agree to pay the initial amount ordered. Nationally, ICE says nearly 4,000 businesses have been fined nearly $7 million combined on such violations. Four Criminal Immigrants Plead Guilty to Bribing ICE Employee U.S. Immigration and Customs Enforcement (ICE) announced that four convicted criminal immigrants pleaded guilty in federal district court in Atlanta to bribing an ICE employee to alter their reporting requirements and criminal histories. In August 2010 one defendant approached an ICE Enforcement and Removal Assistant (ERA) and offered to pay her $1,500 to cancel his reporting requirement. The ERA immediately reported the offer to ICE special agents and other investigators and then began to work in an undercover role. In April 2011, four individuals were indicted; all plead guilty and now await sentencing with max sentences ranging from five to ninety-five years in prison News from the Courts: Judge Tosses Class Action Lawsuit Over Bungled Green Card Lottery The Contra Costa Times reports that U.S. District Judge Amy Berman Jackson dismissed a class-action lawsuit filed by a Dublin man and 35 other people who were told they won a chance to get a U.S. green card, only to be informed that the State Department voided the results of its annual visa lottery because of a computer glitch. Though Judge Jackson said she sympathized with the plaintiffs, she sided with the State Department in arguing that the results had to be voided because a computer

9 problem had caused the selection to favor certain applicants over others. The process is supposed to be strictly random. Indiana Won t Appeal Court Ruling Freezing New Immigration Law The Indianapolis Star reports that the state will not appeal a federal court decision to place a preliminary injunction against parts of Indiana s new immigration law. Attorney General Greg Zoeller asserts that he [remains] committed to defending legislative enactments against outside challenges. The decision not to appeal means those parts of the law will not be enforced while U.S. District Judge Sara Evans Barker hears arguments by the ACLU of Indiana that the provisions should be thrown out. Zoeller said his office prefers to vigorously oppose a permanent injunction in District Court over appealing the ruling in Circuit Court. Utah Attorneys Defend Immigration Enforcement Law The Salt Lake Tribune reports that Attorney General Mark Shurtleff s office says in court documents that a federal court injunction sought against the state s enforcement-only immigration law should be denied outright. The lawsuit, filed by the ACLU and the National Immigration Law Center, charges Utah s HB497 encourages racial profiling and violates the civil rights of undocumented immigrants as well as citizens. Barry Lawrence, assistant attorney general, argued in the brief that the lawsuit is based on the enforcement-only Arizona law. Lawrence wrote in his brief that the lawsuit was baseless because the Utah Legislature took painstaking efforts to avoid the constitutional infirmities of the Arizona law News Bytes: USCIS Announces End of Parole Program in Moscow According to a USCIS release, the agency is no longer offering parole to Lautenberg category members (nationals of the former Soviet Union) who are denied refugee status in Moscow. Parole allows a person to enter the United States but does not provide a path to permanent immigration status. The provision in the Lautenberg Amendment that allows adjustment of status to lawful permanent resident status for Lautenberg parolees will expire Sept. 30, As a result, USCIS said it will not continue to offer parole to persons who are not eligible to adjust their status.

10 Agreement Reached Between the U.S. and the Russian Federation Regarding Adoption and Visa Issuance The Department of State and the Department of Homeland Security announced that Secretary of State Hilary Rodham Clinton and Russian Foreign Minister Sergey Lavrov signed a bilateral adoptions agreement that will strengthen procedural safeguards in adoptions between the two countries. The agreement will create a better defined framework for inter-country adoptions between the U.S. and Russia by allowing only government authorized adoption agencies to operate within Russia. Furthermore, the agreement includes provisions designed to improve post-adoption reporting and monitoring. Secretary of State Clinton and Russian Foreign Minister Lavrov announced an agreement on the issuance of visas that will benefit the largest segments of traveling Americans and Russians- business travelers and tourists by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months. The agreement also streamlines the visa issuance process by reducing the documentation required. CIS Ombudsman Issues Recommendations for Deferred Action The Department of Homeland Security issued a set of recommendations from Citizenship and Immigration Services (CIS) Ombudsman, January Contreras, to improve the transparency and consistency in the USCIS process of deferred action. The recommendations focus on how USCIS processes deferred action requests and the steps that can be taken to ensure that an individual knows how to submit a deferred action request. Furthermore, the recommendations seek to ensure an applicant receives a decision in a timely manner, and can be assured the request will be processed with consistency. For more information and the complete list of recommendations click here. New US Visa Restrictions Placed on Iran The American Visa Bureau reports that new US visa restrictions have been placed on Iranian government officials, military leaders and law enforcement officers for alleged human rights violations in their country. The State Department said the action that restricts certain Iranian officials from being granted a US Visa for travel to America is a reminder to the Iranian government that we will continue to hold its officials accountable for human rights abuses against the Iranian people.

11 Suit Asks Immigration Officials to Stop Using DOMA Against Married Same- Sex Couples San Diego Gay & Lesbian News reports that Lambda Legal filed an amicus brief in a case involving Cristina Ojeda and Monica Alcota, a married bi-national lesbian couple from Queens, NY. Although Ms. Alcota is legally married to Ms. Ojeda, USCIS denied a petition for Ms. Alcota to be classified as the spouse of a U.S. citizen on May 11, The friend-of-court brief argues that immigration officials are incorrectly relying on an inapplicable case for authority to continue deportation proceedings while the constitutionality of the Defense of Marriage Act (DOMA) is being challenged. Instead, the brief urges the Board of Immigration Appeals should do what other immigration courts have already done- put immigration proceedings on hold until the dispute over DOMA is resolved. Visa Delays Imperil Iraqis Who Helped U.S. The New York Times reports that terrorism fears in the United States are all but halting visas for Iraqis, even those who risked their lives aiding the American war effort, leaving them especially vulnerable ahead of the planned American withdrawal. In light of a case in Kentucky in which two Iraqi immigrants were arrested for alleged ties to an insurgent group, the Obama administration has required new security background checks for Visa applicants. Immigrant advocates say the administration is ignoring a directive from Congress to draft a contingency plan to expedite visas should those Iraqis who worked for the United States government come under increased threat after American forces are drawn down at the end of the year. Congress created the special immigrant visa program as a measure to expedite the process for those Iraqis that face punishment for their cooperation with the United States government. Beginning in 2008, Congress expanded the program to allot 25,000 slots over five years. After nearly four years, the government has issued roughly 7,000 in total. The logjam processing visas has put many Iraqis who fear reprisal from insurgents in a potentially serious bind. Activists say the impetus for the legislation was to avoid a huge refugee crisis like the one that followed the pullout from Vietnam, a threat they feel is very real. d=all CA Rep. Seeks to End Diversity Visas The Contra Costa Times reports that in light of the recent bungled State Department visa lottery, in which 22,000 formerly elated individuals were told their selection was voided due to a computer glitch, some lawmakers are making a push to abolish the system altogether. Rep. Elton Gallegly of Simi Valley California believes it does not make sense to give people green cards purely on the luck of the draw. The lottery is meant to promote ethnic diversity, allowing people without existing connections in

12 the United States to settle here by only accepting applications from residents of countries that have not already sent more than 50,000 immigrants to the U.S. in the last five years. Gallegly and other detractors cite the practice as problematic stating, You don t even have to have a compelling reason. You just want to come. The Associated Press reports that the House Judiciary Committee has voted to send a bill abolishing the State Department s visa lottery to the full House. Republican Rep. Bob Goodlatte of Virginia said the program is riddled with problems, including fraud, and has the potential to be exploited by terrorists. Democrats who opposed the bill countered that eliminating the visa lottery would essentially end legal immigration from African nations and reduce the overall number of visas available to all immigrants. Border Fences Said to Threaten Wildlife United Press International reports that a University of Texas study has found that Border fences to stop illegal immigration are a threat to wildlife. Researchers say most at risk of extinction are smaller populations of wildlife that occur in more specialized habitats. When barriers, including border fences and roads, separate the ranges of these animals their ability to move is limited, which makes them more vulnerable to events such as hurricanes or fire, which can wipe out an entire population. More Mexicans Fleeing the Drug War Seek U.S. Asylum Reuters reports that a growing number of Mexicans are fleeing raging drug cartel violence in Mexico to begin a long-shot bid for political asylum in the United States. Drug cartel violence has skyrocketed since President Felipe Calderon took office and sent the military to crush the cartels. As a result, asylum requests have jumped up as well, reaching a record 5,561 last year, of which only 165 were granted. Chances of success for those seeking asylum are incredibly slim. Immigration officials say claims are frequently based on a general fear of drug cartel violence or rampant crime in the petitioner s hometown and fail to meet the strict criteria for asylum. Residency Proof for Immigrant Licenses KRQE News (NM) reports that New Mexico Gov. Susana Martinez ordered the Motor Vehicle Department to send letters to 10,000 random undocumented immigrants who have obtained state driver s licenses to prove they still live in New Mexico. More than 85,000 people without Social Security numbers have received New Mexico

13 driver s licenses due to a 2003 law that allows illegally present immigrants to apply for a driver s license. The 10,000 people who receive the letters will have 30 days to schedule an in-person appointment and bring documents that prove they live in New Mexico, failure to do so will result in their licenses being cancelled. Patrick Backs Illegally Present Immigrants on Tuition The Boston Globe reports that Massachusetts Governor Deval Patrick appeared at a packed State House hearing to urge lawmakers to let illegally present immigrants pay the reduced resident rate at state colleges and universities. In the absence of federal action giving undocumented students a path to residency, advocates for immigrants have lobbied states to make public colleges more affordable for illegally present immigrants. Governor Patrick has thrown his support behind the bill with the hope of injecting new life into a measure that has languished in the Legislature for years. Proponents fight critics who say illegally present immigrant students should not benefit from their parents decision to break the law. Washington State Cancels Driver s License of Journalist Who Disclosed He s Illegally Present The Associated Press reports that Washington State canceled the driver s license of Jose Antonio Vargas, the Pulitzer Prize winning journalist who publicly said he is in the country illegally. Department of Licensing spokeswoman Christine Anthony said an investigation concluded Vargas wasn t residing at the address he provided to the Licensing Department. =439x Rep. Luis Gutiérrez Arrested Near White House in Dream Act and Immigration Protest Fox News Latino reports that Illinois Rep. Luis Gutiérrez was placed in handcuffs for peacefully protesting the Obama administration s deportation policies and his inability to push forward the DREAM Act. Gutiérrez and several others were arrested after refusing orders from police to leave a sidewalk near the White House. The Congressman said he would not be satisfied unless President Obama exercised his power to prevent the deportation of DREAMers and others with deep roots in the U.S.

14 California Enacts Law Letting Illegally Present Immigrants Pay In-State Tuition CNN reports that a law signed by California Gov. Jerry Brown specifies that undocumented immigrant students in the state can be eligible for cheaper in-state tuition rates. The California DREAM Act is distinct from the federal effort of the same name. The California version effectively updates a previously enacted law that allows all people who have attended high school in the state for three or more years to pay cheaper in-state tuition rates to attend one of its public institutions of higher learning. Department of Labor Suspends Issuing Prevailing Wages as it Seeks to Comply with Court Order to Implement H-2B Wage Rules Comite de Apoyo a Los Trabajadores Agricolas, an organization of immigrant laborers, has successfully sued the Department of Labor after the agency announced its decision to delay by a year the effective date of a set of regulations on H-2B visa prevailing wages. The court found the DOL violated the Administrative Procedure Act by delaying the regulations without any notice and comment opportunity for the public. The US District Court for the Eastern District of Pennsylvania ordered the Department of Labor to implement the new H-2B prevailing wage regulations within 45 days of the mid-june decision s issuance. The Labor Department is being forced to reissue 4,000 H-2B wage determinations. DOL has informed stakeholders that for an undefined period of time, it will issue no prevailing wage determinations or requests for reconsideration or appeal in any cases requiring prevailing wages including PERM cases, H-1B cases, H-2B cases and H-2A cases. Employers can file prevailing wage requests and when the agency resumes processing for everyone, applications will be handled on a first in, first out basis. 7. Washington Watch: Democrats Accuse Rep. Smith of Hypocrisy The San Antonio Express News reports that House Democrats have denounced an immigration bill authored by Rep. Lamar Smith as petty partisan politics and accused the San Antonio Republican of being a hypocrite for introducing the measure to spur deportations. Smith filed the HALT Act to remove special considerations from

15 immigration proceedings after the White House announced it would prioritize deportations to remove violent criminals and terrorists. Smith defended the bill as a rebuke against what he saw as the Obama administration ignoring the will of Congress and the American people by using executive branch authority to allow illegal immigrants to remain in the United States. Democrats dismissed the bill as political pandering that distracted from measures that seek to improve the immigration system such as the DREAM Act. The Houston Chronicle reports that Republicans pushed forward with the bill during a raucous House hearing. Democrats, meanwhile, have lined up in opposition against the HALT Act. Rep. Zoe Lofgren, D-Calif., accused Smith and Republicans of engaging in political hyperbole to take away prosecutorial discretion that has been enjoyed by previous presidential administrations. Republicans defend the bill as an effort to halt what they consider to be presidential abuse of administration privileges. Mayor of Lewiston, Maine Testifies on Immigrants Impact The Morning Sentinel (ME) reports that Mayor Larry Gilbert of Lewiston, Maine testified before a Senate hearing on immigration reform about the benefits his town has enjoyed from an influx of Somali immigrants. He described formerly vacant storefronts now occupied by immigrant-owned businesses in an effort to relate the economic energy immigrants can bring to a local economy. Gilbert acknowledged that the benefits did not come without bumps along the way; issues that he said could be smoothed over with better support from the federal government in areas such as workforce training and learning English. House Unanimously Amends Immigration and Nationality Act The New York Times reports that the House passed, by a vote, HR 398, to amend the Immigration and Nationality Act to toll, during active-duty service abroad in the Armed Forces, the periods of time to file a petition and appear for an interview to remove the conditional basis for permanent resident status. House Passes H-1C Bill The House voted in favor of HR 1933, a bill reviving the H-1C nurse visa, a visa category that lapsed in Lamar Smith, the chair of the House Judiciary Committee, sponsored the bill. H-1C visas will be available to up to 300 nurses per year who are sponsored to work in areas designated by the U.S. Department of Health and Human Services to have a nursing shortage. The number of nurses

16 admitted was reduced from 500, but nurses will now be able to stay for up to six years in two three year terms. The bill now moves on to the Senate Judiciary Committee for consideration. 8. Updates from the Visalaw.com Blogs Greg Siskind s Blog on ILW.com Ombudsman Issues Recommendations on Employment Authorization Documents Immigration Humor: Closing the Borders A Mini-McCarthy Panel to Enforce Georgia Immigration Law? House Judiciary Committee Votes to End Visa Lottery Why Employers Don't Do a Good Job Complying with Immigation Law Report: Republicans Considering Their Own High Skilled Workers Bill California Dream Act signed by Governor Senate Holds Hearing on Skilled Immigration Benefits Stock on the HALT Act Florida Governor Thinks Arizona-Style Bill Will Actually Attract Businesses Immigration is Most Important Issue for Hispanics Another For-Profit University Has Student Visa Program Shut Down NY Times: Smith Promises Agricultural Worker Bill House Approves H-1C Nurse Visa Bill The Budget Deal and the Immigration Debate New Initiatives Intended to Make Immigration Easier for Entrepreneurs ICE's Chutzpah Moment Anderson: Let One or Two Flowers Bloom Honor, Dignity, Justice Obama Administration Deports Same Sex Spouse American Bar Association Urges Congress to Preserve Birthright Citizenship AILA Launches Pro Bono Program to Help DREAMers The SSB I-9, E-Verify, & Employer Immigration Compliance Blog Louisiana Company Fined for I-9 Discrimination Costco Joining IMAGE Program ICE Announces Fines in New England I-9 Audit The Visalaw Healthcare Immigration Blog Program to Retrain Foreign Doctors in Minnesota Eliminated Visalaw Health Care Newsletter Now Online H-1C Visa Bill Passes in House Karen Weinstock s Visalaw Georgia Immigration Blog GOVERNOR TO COMMISSION IMMIGRATION REVIEW BOARD E-VERIFY COSTLY TO SMALL BUSINESSES GEORGIA RESTAURANTS REPORT LABOR SHORTAGES AFTER HB87

17 GEORGIA'S HB87 ALLOWS CITIZEN VOLUNTEERS TO STRIP GOVERNMENT FUNDING GEORGIA LISTS IDS ACCEPTABLE BY STATE FOR HB87 9. State Department Visa Bulletin: September 2011 Number 36 Volume IX Washington, D.C. A. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers during September. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by August 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. 2. The fiscal year 2011 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000. The fiscal year 2011 limit for employment-based preference immigrants calculated under INA 201 is 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 for FY The dependent area limit is set at 2%, or 7, INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES. 4. Section 203(a) of the INA prescribes preference classes for allotment of Familysponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES

18 First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) Family- Sponsored All Chargeability Areas Except Those Listed CHINAmainland INDIA born MEXICO PHILIPPINES F1 01MAY04 01MAY04 01MAY04 15MAR93 01NOV96 F2A 01DEC08 01DEC08 01DEC08 22SEP08 01DEC08 F2B 01JUL03 01JUL03 01JUL03 01NOV92 22MAR01 F3 22AUG01 22AUG01 22AUG01 22NOV92 15MAY92 F4 15APR00 15APR00 15APR00 22MAR96 08JUL88 *NOTE: For September, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP08. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP08 and earlier than 01DEC08. (All F2A numbers provided for MEXICO are exempt from the percountry limit; there are no F2A numbers for MEXICO subject to per-country limit.) 5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

19 Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) Employment- Based All Chargeability Areas Except Those Listed CHINAmainland INDIA born 1st C C C C C 2nd C 15APR07 15APR07 C C MEXICO PHILIPPINES 3rd 22NOV05 15JUL04 08JUL02 22NOV05 22NOV05 Other Workers 01AUG05 22APR03 01JUN02 01AUG05 01AUG05 4th C C C C C Certain Religious Workers 5th Targeted Employment Areas/ Regional Centers and Pilot Programs C C C C C C C C C C *Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L , provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW

20 cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year The Department of State has a recorded message with visa availability information which can be heard at: (202) This recording is updated on or about the tenth of each month with information on cut-off dates for the following month. B. DIVERSITY IMMIGRANT (DV) CATEGORY Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annuallyallocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2011 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For September, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Region All DV Chargeability Areas Except Those Listed Separately AFRICA CURRENT Except: Ethiopia 32,700 ASIA EUROPE NORTH AMERICA (BAHAMAS) OCEANIA SOUTH AMERICA, and the CARIBBEAN CURRENT CURRENT CURRENT CURRENT CURRENT Except: Uzbekistan UNAVAILABLE Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2011 program ends as of September 30, DV visas may not be issued to DV-2011 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, DV visa availability through the very end of FY-2011 cannot be taken for granted. Numbers could be exhausted prior to September 30.

21 C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN OCTOBER For October, immigrant numbers in the DV category are available to qualified DV applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Region AFRICA 8,500 ASIA 8,000 EUROPE 8,500 NORTH AMERICA (BAHAMAS) 3 OCEANIA 300 SOUTH AMERICA, and the CARIBBEAN All DV Chargeability Areas Except Those Listed Separately 400 Except: Egypt 5,000 Ethiopia 7,000 Nigeria 7,000 D. DIVERSITY VISA LOTTERY 2012 (DV-2012) RESULTS The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2012 diversity lottery. The diversity lottery was conducted under the terms of section 203(c) of the Immigration and Nationality Act and makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Approximately 100,021 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger figure should insure that all DV-2012 numbers will be used during fiscal year 2012 (October 1, 2011 until September 30, 2012). Applicants registered for the DV-2012 program were selected at random from 14,768,658 qualified entries (19,672,268 with derivatives) received during the 30- day application period that ran from noon on October 5, 2010, until noon, November 3, The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete the information requested.