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U.S. IMMIGRATION NEWSLETTER is the E-Newsletter regarding U.S. Immigration Laws, News & Issues compiled by GLOBAL LAW CENTERS on a Bi-weekly basis and special news issues are sent when important immigration news arises. It is a must reading for potential immigrants, employers and human resources managers. It provides analysis of the latest developments in U.S. immigration laws. Information provided in this newsletter is general information only and may not apply to any particular set of facts or situations.
In This Issue
State Department issues December 2008 Visa Bulletin – Religious Workers return, but no movement in backlogged EB-2 and EB-3 categories
The U.S. Department of State (DOS) released the December 2008 Visa Bulletin on November 6, 2008. Visa dates are announced by the DOS every month. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Should it become necessary during the monthly allocation process to immediately retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.
The latest edition of the Visa Bulletin bears an uncanny resemblance to the November edition, with one notable exception: the “Certain Religious Workers” category. Listed as “unavailable” in November, the category’s status has been changed to “current” for December, “in anticipation of the publication of DHS regulations in this category.” DOS notes that once these regulations are published, “processing in this category can resume immediately.” Otherwise, the Employment-Based dates are identical to those listed in November: the current categories remain current, and dates for backlogged categories have not budged. Applicants in the “other worker” category, the EB-3 category, and the EB-2 categories for India & China can at least be thankful this holiday season that their categories have not retrogressed. As noted in our e-newsletter of October 20, 2008, we are not likely to see a significant forward move for EB-2 or EB-3 visa numbers in the near future.
Make sure to stop by our website for the latest updates and information on the DOS Visa Bulletins. Pursuant to INA § 245(a)(3), aliens with priority dates prior to the cut-off dates shown on the Visa Bulletin will be eligible to file adjustment of status (green card) applications during the month of November 2008.
In Balam-Chuc v. Mukasey, No. 06-72887 (9th Cir., Oct. 28, 2008), the Ninth Circuit Court of Appeals held that the April 30, 2001 filing deadline for 245(i) benefits is a “statute of repose” and not a “statute of limitations”.
The significance of this distinction is that statutes of limitations can be extended by courts when clear injustice would result from strict enforcement of the deadline, while statutes of repose contain hard deadlines that cannot be extended by a court—no matter how unjust the application of the deadline to a particular case.
In Balam-Chuc, even the court acknowledged that the result in this case “appears pointless and unjust”, though it found that responsibility for correcting this injustice lies with Congress and the Executive Branch, not the courts. Reviewing the legislative history of the LIFE Act, which included the 245(i) filing deadline in question, the court found that the clear intent of Congress was to set a hard deadline for filing applications, and not to create a statute of limitations that a court could extend in appropriate cases through the doctrine of “equitable tolling”.
The facts in this case certainly presented a compelling case for equitable tolling. Mr. Balam-Chuc, who had entered the U.S. without inspection, retained a law firm to prepare and file his Immediate Relative Visa Petition on March 20, 2001. However, immigration did not receive the petition until June 13, 2001, about a month and a half after the deadline, and neither Mr. Balam-Chuc nor the law firm could present proof that the petition had been timely filed. As a result, his application for adjustment of status under 245(i) was denied. Both the BIA and the Ninth Circuit rejected his argument that the deadline should be extended by the judicial doctrine of equitable tolling.
The Ninth Circuit also rejected Balam-Chuc’s arguments that he was denied due process as a result of ineffective assistance of counsel. The court held that such rights apply in the context of a hearing on the case, and not to errors made by counsel outside of the course of such a hearing. Because the alleged errors of counsel occurred at a time when there were not even any hearings pending on the case, no due process claim could be made on such grounds.
Although this decision will close off 245(i) relief for applicants in this situation and others like it, the Ninth Circuit has put the ball squarely back in Congress’ court. Whether or not the legislative branch will answer the call remains to be seen.
Calling it “the final substantive step by the Republic of Korea to fulfill its requirements for designation as a member of the VWP,” the U.S. Department of Homeland Security (DHS) has signed a pact with South Korea’s Ministry of Foreign Affairs and Trade aimed at enhancing cooperation between the two nations in preventing and combating crime and terrorism.
The agreement, signed November 7, 2008, calls for improvements in sharing information about international travel, border screening, known and suspected terrorists, lost and stolen passports, and enhancements to airport and aviation security.
“I commend Korea for its collaboration and taking this important step toward joining an expanded and more secure Visa Waiver Program,” said Homeland Security Deputy Secretary Paul A. Schneider. “This agreement will enable law enforcement officers on both countries to share information to combat crime and enhance our ability to prevent criminal and terrorist travel.”
On November 17, 2008, DHS plans to admit South Korea and seven other nations into the VWP, a program that currently allows travelers from 27 designated countries to make brief trips to the U.S. without a visa.
Every year, the Staff at Global Law Centers takes time to give thanks to those who make our success possible. We feel truly blessed to be able to serve and assist our immigrant community, with each passing day and year.
In recognition of our great friends, who seem more like close knit family members, we offer our most sincere thanks and appreciation to our clients, who have given us the opportunity to assist them in attaining legal statuses and fulfilling their dreams of living in the U.S. We are grateful for their confidence and trust in our abilities which they continuously demonstrate by putting their lives in our hands. We ensure integrity on all levels, and guarantee that from start to finish we will continue to provide high quality care for each case and client. Global Law Centers thanks our corporate clients and promises to continue helping Corporations, their employees, and family members pursue the best legal strategies for their unique cases. The staff at Global Law Centers knows how sensitive and distinctive each case can be and we will continue to serve our clients with the utmost professionalism and offer the same respect and expertise to the greater immigrant community.
John Fitzgerald Kennedy once said that as we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them. Global Law Centers lives by these values. It has always been our duty to provide immigration legal services with integrity, professionalism, and individualized attention. This Thanksgiving, as you gather with your dearly loved friends and family members, we hope you will be able to give thanks for one another and cherish these moments in your hearts and lives forever sharing the splendor of love, friendship, and compassion. Global Law Centers offers thanks from our family to yours.
Thank you and Happy Thanksgiving, everyone!
On November 6, 2008, the USCIS Office of Communications released a Fact Sheet on the naturalization process for members of the military and their families. The Fact Sheet, which can be accessed from Global Law Centers’ website, includes information on eligibility for naturalization benefits, as well as facts and figures about the history of naturalization for members of the military.
Are you always searching for new changes and updates in immigration law and legislation? Global Law Centers invites you to visit our Immigration News Blog Our firm understands that the arena of immigration law is constantly changing and evolving. We take pride in providing our readers the most up-to-date immigration news and memos. Blogging has allowed Global Law Centers to communicate with our clients the important changes in immigration policies and they can affect you. Our goal is to provide you with various immigration news topics bring you the most up-to-date information that you may not have access to or the time to find on your own.
We hope you will share your thoughts on the topics we cover and ask plenty of questions. Is there a topic you want to learn more about? Please let us know!