US Immigration Blog

DHS Expands list of STEM programs eligible for OPT

The Department of Homeland Security (DHS) has announced an expanded list of science, technology, engineering, and math (STEM) designated-degree programs that qualify eligible graduates on student visas for an optional practical training (OPT) extension. This announcement builds on a series of administrative reforms designed to further the Department's commitment to attracting international students.

"Attracting the best and brightest international talent to our colleges and universities and enabling them to contribute to their professional growth is an important part of our nation's economic, scientific and technological competitiveness," said Secretary of Homeland Security Janet Napolitano. "International students and exchange visitors bring invaluable contributions to our nation, and this helps empower the next generation of international entrepreneurs, right here in America."

Under the OPT program, international students who graduate from colleges and universities in the United States are able to remain in the country and receive training through work experience for up to 12 months. Students who graduate from a designated STEM degree program can remain for an additional 17 months on an OPT STEM extension.

By expanding the list of designated STEM degree programs to include such fields as pharmaceutical sciences, econometrics and quantitative economics, the Department is helping bring the best, most qualified international students to the United States.

These reforms reflect the Obama administration's ongoing commitment to promote policies that embrace talented students from other countries, who come to study in our finest colleges and universities and enrich the nation by allowing highly skilled foreign graduates to extend their post-graduate training in the United States and work in their field of study upon graduation.

A full list of expanded STEM degrees is available herehttp://www.immigrationbn.com/Portals/52046/docs/SEVPandDHS_STEMprograms2011Lists.pdf

 

USCIS Advises on Failure to Register for NSEERS

On April 28, 2011, through a notice published in the Federal Register, the Department of Homeland Security (DHS) removed the list of countries whose nationals have been subject to NSEERS registration and reporting requirements. The notice also announced that DHS would no longer register aliens under the NSEERS program. It did not give guidance on how DHS Components should treat aliens' past failure to comply with special registration and reporting provisions. This memorandum (copy attached docs/nseers.pdf) provides this guidance and also clarifies that, as of April 28, 2011 -DHS has suspended all special registration and reporting requirements associated with the NSEERS program. This suspension applies to all aliens previously subject to NSEERS requirements, whether or not the alien was a national of one of the previously designated countries and regardless of the underlying basis for the alien's inclusion in the NSEERS program.  Unless failure to register for NSEERS was willful, there will not be any adverse consequences for failure to register. This suspension applies to all aliens previously subject to NSEERS requirements, whether or not the alien was a national of one of the previously designated countries and regardless of the underlying basis for the aliens inclusion in the NSEERS program.

 

Oral Argument in Arizona v. US. The Future of S.B.1070?

"It did not take long for Justice Antonin Scalia to side with Arizona [regarding SB 1070], and it was not much later that Chief Justice John G. Roberts, Jr., showed that he, too, was inclined that way. Justice Clarence Thomas, who said nothing during the argument, is known to be totally opposed to the kind of technical legal challenge that the government has mounted against S.B. 1070. That left Justices Anthony M. Kennedy and Samuel A. Alito, Jr., as the ones that might be thought most likely to help make a majority for Arizona." - Lyle Denniston, Apr. 25, 2012

See the Transcript of the Supreme Court Oral Argument in Arizona v. US  docs/supreme court.pdf

 

 

Injunction Issued against DOL implementing New H-2B Visa Rule

A Florida judge issued a nationwide temporary injunction preventing the Department of Labor (DOL) from implementing the H-2B Visa program rule. Even though the ruling was issued in Florida, it applies nationwide. Congress has blocked the wage rule until September 30.

“We do expect the Department of Justice to appeal the decision, but any legal challenge will take a quite a while to play itself out and we are well positioned to address any further legal challenge,” Delaney said.

PLANET and other organizations initiated lawsuits against the H-2B program rule in the Northern District of Florida.

“PLANET members should take great pride in the fact that Judge Rogers relied extensively on Sabeena Hickman’s sworn statement regarding the harm DOL’s H-2B changes will cause to PLANET members,” said Richard Lehr, PLANET’s attorney.

 

EB 2 Annual Visa Limits Reached for India and China

AILA has confirmed with the State Department that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin (AILA Doc. No. 12040652). USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

 

AILA InfoNet Doc. No. 12042360.

 

Streamlining the EB-2 and EB-1 Visa Process.

 

USCIS has partnered with business experts to improve the way it approaches the employment-based and high-skilled visa categories used by immigrant entrepreneurs. USCIS Director Alejandro Mayorkas kicked-off this innovative program, called the Entrepreneurs in Residence (EIR) initiative in February. The EIR initiative consists of a tactical team comprised of outside experts working alongside USCIS employees. For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs.  We welcome this significant effort to streamline visas for employment-based and high-skilled visa categories.   You can read more on this initiative at http://blog.uscis.gov/

 

USCIS Issues Guide to Assist Preparations for Citizenship

The Office of Citizenship recently introduced three new practice tests to help permanent residents prepare for the naturalization interview. The first activity helps you with some general commands you may hear from an Immigration Services Officer during the naturalization interview. You can download self-study flash cards and review a practice exercise before taking the practice test called "Understanding Commands for the Naturalization Interview." There are two other activities that focus on vocabulary words that you may hear in your interview or read on the Application for Naturalization, Form N-400. You can find all three activities on the Study Materials for the English Test section of the Citizenship Resource Center at http://content.govdelivery.com/bulletins/gd/USDHSCIS-3aa331

 

For Educators: Classroom Materials for Teachers Accompany Practice Tests for Naturalization Preparation

 

To help students learn and practice commands that an applicant may hear during the naturalization interview, the Office of Citizenship has developed 8 ½" x 11" visuals and flash cards for teachers to accompany the practice test called "Understanding Commands for the Naturalization Interview." These materials include suggestions for using the visuals and flash cards for games and small-group activities in the classroom. A downloadable practice exercise is also available for students to read, listen, and review the sentences before taking the interactive practice test. The other two practice tests for students focus on vocabulary words that applicants may hear in their interview or read on the Application for Naturalization, Form N-400. These materials can be found on the Educational Products section of the Citizenship Resource Center at http://content.govdelivery.com/bulletins/gd/USDHSCIS-3aa331

 

May 2012 Visa Bulletin | Immigration

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during May. 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 April 6th.  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. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 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. The dependent area limit is set at 2%, or 7,320.

3. 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 Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

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	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	01MAY05	01MAY05	01MAY05	15MAY93	01JUL97
F2A	15NOV09	15NOV09	15NOV09	15OCT09	15NOV09
F2B	22FEB04	22FEB04	22FEB04	01DEC92	08DEC01
F3	08MAR02	08MAR02	08MAR02	15JAN93	22JUL92
F4	01DEC00	22NOV00	01DEC00	01JUN96	22JAN89

*NOTE:  For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15OCT09.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15OCT09 and earlier than 15NOV09.  (All F2A numbers provided for MEXICO are exempt from the per-country 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.

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. 102-395.

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	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15AUG07	15AUG07	C	C
3rd	01MAY06	01APR05	08SEP02	01MAY06	01MAY06
Other Workers	01MAY06	22APR03	08SEP02	01MAY06	01MAY06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted Employment Areas/ Regional Centers and Pilot Programs	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. 105-139, 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 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 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. 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 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2012 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 May, immigrant numbers in the DV category are available to qualified DV-2012 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	50,000	Except: Egypt  33,000 Ethiopia  33,000 Nigeria 25,000
ASIA	40,500
EUROPE	40,000	Except: Uzbekistan 16,500
NORTH AMERICA (BAHAMAS)	10
OCEANIA	1,150
SOUTH AMERICA, and the CARIBBEAN	1,150

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-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JUNE

For JUNE, immigrant numbers in the DV category are available to qualified DV-2012 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
ASIA	CURRENT
EUROPE	CURRENT	Except: Uzbekistan 17,050
NORTH AMERICA (BAHAMAS)	CURRENT
OCEANIA	CURRENT
SOUTH AMERICA, and the CARIBBEAN	CURRENT

D.  RETROGRESSION OF THE CHINA-MAINLAND AND INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATE

Due to the rapid forward movement of the cut-off date, demand for China and India Employment Second preference numbers has increased dramatically during recent months, and at a much faster rate than had been expected.  Therefore, it has been necessary to retrogress that cut-off date to August 15, 2007 in an attempt to hold number use within the annual limit while maintaining availability for those countries that have not yet reached their per-country limit.  Notices were included in the November, January, and February Visa Bulletins alerting readers to the possibility of such a retrogression.  While corrective action has become necessary earlier than was anticipated based on the information available at the time cut-off dates were determined, it is hoped that readers are not caught off guard by this retrogression.
 
Should additional information regarding potential demand become available, it may be necessary to take additional corrective action at any time. 
 
Every effort will be made to return the China and India Employment Second preference cut-off date to the previously announced April date of May 1, 2010.  This will be done as quickly as possible under the FY-2013 annual limits, which take effect October 1, 2012.  It will not be possible to speculate on the cut-off date which may apply at that time until late summer. 
 
USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings based on the originally announced April cut-off date.

E. IMPORTANT NOTICE FOR DIVERSITY VISA (DV)2012 ENTRANTS

Successful entrants are encouraged to send in their required documents to the Kentucky Consular Center (KCC) immediately, so that an interview appointment at the appropriate U.S. Embassy or consulate can be scheduled in the near future.  In order for an appointment to be scheduled with either a U.S. Embassy or Consulate, entrants must first submit the Form DSP-122 and Form DS-230 to KCC.  Embassies and Consulates only have a limited number of appointments each month, including September, for DV applicants, so it is vital that successful entrants mail these documents to KCC very soon. There is no guarantee that a successful entrant who submits all of the required documentation to KCC will either be given an appointment or issued a DV.

There are several reasons why successful entrants should submit their documents to KCC now.  First, there are 50,000 DVs available for DV-2012.  Once all of the 50,000 DV visas have been issued for DV 2012, the program will end.  In addition, because no more than 3,500 individuals from a single country may receive DVs in a given year, once 3,500 from an individual country have received a DV, other selectees from that country will no longer be eligible to receive a DV.  Finally, U.S. Embassies and Consulates only have six months left to issue visas to eligible applicants in the DV 2012 program.  Successful entrants cannot be issued a DV after September 30, 2012.  Participants are reminded to check the status of their DV entry through Entrant Status Check www.dvlottery.state.gov, using the confirmation numbers they received when they initially submitted their applications.

F. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (monthly)

Worldwide dates:

F1:	four to six weeks
F2A:	up to two and one half months
F2B:	three to six weeks
F3:	three to six weeks
F4:	three to five weeks

     
EMPLOYMENT-based categories (monthly)

Employment First:  Current

Employment Second:

Worldwide:  Potential need for cut-off date to be established

China and India:  Potentially “Unavailable”  

Employment Third:

Worldwide:	three to five weeks
China:	up to six weeks
India:	up to two weeks
Mexico:	three to five weeks
Philippines:	three to five weeks

Employment Fourth:  Current

Employment Fifth:  Current

Please be advised that the above ranges are only estimates for what could happen during each of the next few months based on current applicant demand patterns.  The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand which can occur at any time.  Those categories with a “Current” projection will remain so for the foreseeable future.

 

May 2012 Visa Bulletin | EB2 Visa Retrogression - China and India

 

The May 2012 Visa Bulletin is out.  Demand for China and India Employment Second preference numbers has increased dramatically and at a much faster rate than had been expected.  Therefore, it has been necessary to retrogress that cut-off date to August 15, 2007 in an attempt to hold number use within the annual limit while maintaining availability for those countries that have not yet reached their per-country limit.  Notices were included in the November, January, and February Visa Bulletins alerting readers to the possibility of such a retrogression.  While corrective action has become necessary earlier than was anticipated based on the information available at the time cut-off dates were determined, it is hoped that readers are not caught off guard by this retrogression. Should additional information regarding potential demand become available, it may be necessary to take additional corrective action at any time.  

Every effort will be made to return the China and India Employment Second preference cut-off date to the previously announced April date of May 1, 2010.  This will be done as quickly as possible under the FY-2013 annual limits, which take effect October 1, 2012.  It will not be possible to speculate on the cut-off date which may apply at that time until late summer.   USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings based on the originally announced April cut-off date.

 

Expert Analysis on the E-Verify Program

Immigration Attorney, Karen-Lee Pollak provides expert analysis on the E-Verify Program publishing, The E-Verify Program: Is It All It’s Cracked Up To Be? in Law360.

Law360 is an American online media company based in New York City that publishes news and analysis on business law for its online subscribers. Current subscribers include each of the top 100 law firms in the U.S., corporate legal departments and major federal and state agencies. All told, the company provides litigation news and analysis to over 100,000 attorneys and 1,400 organizations.

E-Verify is an online, fully electronic federal database used for verifying if an employee is eligible to lawfully work in the United States. According to some reports, currently more than 60,000 businesses use E-Verify with over 1,000 signing up each week. Although E-Verify is mostly voluntary, E-Verify is required by law in some states, is required by federal contractors and federal agencies and subcontractors and some employers.

The strongest argument in favor of the use of the E-Verify program is that it protects employers where new hires present fraudulent identity documents. With E-Verify, even if a new hire passes the I-9 test by presenting the required documents to lawfully work in the U.S., E-Verify can detect if the document belongs to someone else or is fraudulent because it cannot be matched to a proper record in the Social Security or U.S. Department of Homeland Security’s databases.

However, the E-Verify program is not without its flaws. E-Verify is often criticized for high error rates and negatively affecting hiring practices. The sharpest criticism of E-Verify is that, while itverifies a match between a social security number and a name, it still has no way of knowing if the person actually presenting the information is in fact the person they say they are. As a result, the system is subject to an unauthorized worker using borrowed or stolen identity documents. A study conducted by Westat estimated in 2009 that 54 percent of unauthorized workers screened through E-Verify were incorrectly confirmed by the system because they used borrowed or stolen identity data.

Another common criticism is that E-Verify cannot reliably detect whether an employer is using the program consistently. If an employer enrolls in the E-Verify program, they are required to use the program for all new hires. An employer may only be using the program for those workers it suspects to be unauthorized thereby engaging in discriminatory hiring practices. Even worse, an employer may be enabling the hiring of unauthorized workers by not using the program for those workers it suspects do not have proper work authorization.

The program has also been criticized because it erroneously nonconfirms some legal workers and imposes additional time and costs on employers. Because of user and database error, E-Verify does not always successfully confirm the work eligibility of citizens or permanent residents lawfully allowed to work. Sometimes a nonimmigrant who was not lawfully allowed to work has now become a permanent resident and is allowed to work. There also may be false social security mismatches where a person has changed their name as a result of marriage. These status changes may not be properly recorded in the federal databases.

While it is true that these errors may be remedied, often to do so means taking several hours off work to visit various federal offices to correct these errors and that is only if employers advise the new hire of the glitch. Sometimes employers do not notify prospective new hires of these glitches because they have improperly used E-Verify to prescreen job applicants. Therefore, some employers avoid hiring or terminate legal workers because of E-Verify errors. There is also growing concern that E-Verify will expose individuals to greater identity theft as more people and agencies have access to this database.

So what can we do to perfect this system? Both the Bush and Obama administrations have created a photo-matching tool to determine if a photo identification document presented by a worker matches the photograph in the E-Verify system. While this is a step in the right direction, it only applies to those workers who present documents with photo identification that evidence work authorization such as permanent residency cards or U.S. passports. As a result, some employers are unlawfully requesting that employees present certain documents as part of the employment verification process either to bypass the photo-matching tool or to ensure that it is used.

To combat these disadvantages, some lawmakers are suggesting that all workers provide biometrics that can be matched to the E-Verify system. For this to work, E-Verify would have to become mandatory for all employers. There are also constitutional concerns with requiring all workers to be fingerprinted in order to be allowed to work in the U.S. Such a proposition smacks of George Orwell’s “Big Brother is watching,” not to mention the exorbitant cost to fingerprint every worker.

While the E-Verify program is good in theory, we cannot make it mandatory until we iron out its quirks, impose civil and criminal penalties for improper use of the E-Verify system and most importantly create a path to lawful work authorization for those illegal workers in the United States. Making E-Verify mandatory without immigration reform will simply move more illegal workers off the radar, as they will no longer pay taxes and employers will simply take them off the payroll to avoid detection resulting in lower wages and less taxes paid to the government.