Get Behind the Immigration Bill Republicans!

The Republican party stands for fiscally conservative policy which benefits the economy and raises the standard of living for everyone.  That is exactly what the Senate Immigration Bill will do.  A recent summary of the bill can be found on the American Immigration Council website.  And don't forget to read the New York Times opinion piece by David Brooks.  The opinion piece outlines how the Republican party has every reason to support the bill.  It is spot on! 

EB-2 India Moves 3+ Yrs Forward - What Does It Mean?

The State Department has advanced the priority dates in August 2013 for EB-2 India to January 1, 2008.  This represents a jump forward of more than three years from the current date of September 1, 2004.  The State Department has explained this action as follows:

“India Second:  This cut-off date has been advanced in an effort to fully utilize the numbers available under the overall Employment Second preference annual limit.  It is expected that such movement will generate a significant amount of new India demand during the coming months.
These changes for the Family F2A, and India Employment Second preference categories reflect actions which have been taken based on current applicant demand patterns.  Readers should expect that some type of “corrective” action will be required at some point during FY-2014 in an effort to maintain number use within the applicable annual limits.  Such action would involve the establishment and retrogression of such cut-off dates, and could occur at any time.”

What this means, in practical terms, is that the two agencies which approve permanent resident status (State Department through the immigrant visa (“IV”) process, and USCIS through the adjustment of status (“AOS”) process) have found a need to encourage more people to apply for permanent resident status based on the number of visas available in that category and the number of applications approved each fiscal year.  It does not mean that the date will move forward in a predictable fashion, and in fact it means that it could remain at that date or even “retrogress” and move backward. 

What will happen is that as of August 1, 2013, all those applicants with priority dates between September 2, 2004 and January 1, 2008 will be able to 1) apply for an IV or AOS; and 2) be approved for an IV or AOS while the dates remain current for their priority date.  The State Department and USCIS will then monitor how many cases each agency approves and receives, with a view toward issuing all the visas available for EB-2 India during the 2014 fiscal year which begins October 1, 2013 and ends September 30, 2014.  If, after a few months, the demand is high (meaning a lot of applications are approved and also filed during that time), then I would assume that the State Department would not move the priority dates forward and could in fact retrogress the numbers.  If, however, the demand is not as high as they anticipated, then State Department will again move the dates forward to some date which they believe will generate the necessary applicant demand.  Since AOS cases take about 4-5 months to be approved right now, it is likely that the number usage will not be known until the end of the year or early next year.

This process is a bit like opening the door to a series of rooms, representing those with certain priority dates, not knowing how many people are actually in that room before you open the door, and inviting them into a large hall.  Also, some people might not want to come out.  The hall can only accommodate a certain number of people (representing the visa quotas), and so instead of opening all the doors at once, they open certain doors of the rooms of those waiting the longest to get into the hall.  As they count the number of people coming out, they may decide to close some doors (representing retrogression), or open up more (representing forward movement).  This is how our visa priority date system works, or doesn’t work, depending on your point of view.

Forward movement is indeed good news for those with priority dates near the current published dates, but it doesn’t mean that if you are one month away, for example, that it will just be another month of waiting.  It depends on how many people come out of the rooms, and how many are eventually approved for residence during the fiscal year.

Don't give US grads the boot!

A recent blog post of mine appeared on the AILA leadership blog.

Deported for Trying to Join Marines

Issac Carbajal was brought to this country at the age of 5, and grew up in Lake Oswego, Oregon, a suburb of Portland.  He is an aspiring American.  He went to high school, and right before graduation was recruited on his high school campus by the Marines to serve his country.  When he showed up in San Diego to enlist in January 2011, he was instead deported to Mexico, dropped on the other side of the border with $18 in his pocket.  Senator Durbin went onto the Senate floor yesterday to highlight Issac's case, and the need for passage of the DREAM Act as part of the new immigration law being debated in the Senate.  The new law will help Issac achieve his dream of serving his country.  The time for a new law is now.

Bribes for Visas Ho Chi Minh City Style

As reported in a story by the McClatchy Washington Bureau, a foreign service officer, Michael T. Sestak, who was head of the nonimmigrant visa unit in Ho Chi Minh City (HCMC), Vietnam has been charged criminally for allegedly making millions of dollars accepting bribes in return for issuing visas.  While graft is exceedingly rare in the U.S. State Department, it is striking that these allegations implicate HCMC, which is widely regarded as one of the worst possible consulates for genuine visa applicants to apply for visas on the planet.  In fact, I filed a class action lawsuit in 2010 alleging that the HCMC Consulate General engaged in arbitrary and capricious adjudication resulting in unreasonable denials, and then failed to give the applicants any opportunity to rebut the consular allegations of sham marriage.  The consular officers and their local staff are immune from any review by the "Doctrine of Consular Nonreviewability", a court doctrine from the 1800's which cuts off any oversight of the visa denial process whatsoever, even if the petitioner is a U.S. citizen.  The lawsuit was dismissed under this antiquated Doctrine by the federal court in 2011, and in 2012 the Ninth Circuit Court of Appeals found that, due to all of the visa applicants being granted visas by HCMC the second time around, the case was moot.  The charges brought against Sestak should be a wake up call to the State Department and Congress that the Doctrine of Consular Nonreviewability not only erodes our basic form of government, but it also generates the kind of demand for access to visas that Mr. Sestak is alleged to have fulfilled, for a price.  The time for the Doctrine to be abolished has come.

Our Firm Gets Top Ranking Again

Chambers and Partners, the London-based international legal rating company, has once again given our firm a top ranking, stating, "This compact boutique has a stellar reputation as one of the state's best immigration practices. The team counsels domestic and international clients from a variety of industries in immigration matters, such as visa issues and immigration compliance."

Most Favor Roadmap to Citizenship

A recent poll shows that a large majority of the American public favors a roadmap to citizenship for aspiring Americans who have been contributing members of society but lack immigration status.  Since the Senate Judiciary Committee approved a sweeping immigration bill to create an immigration process for new Americans this week, Senators will need to heed the will of the majority of voters when the bill comes to the Senate floor in June.  It is time to recognize that all people have rights, and those who show a commitment to our country and who contribute to our culture have a place here.  America deserves a common sense immigration process - one that includes a roadmap to citizenship for New Americans who aspire to be citizens.