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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
Section 1 – Department of State releases February 2009 Visa Bulletin-No movement in India’s EB-3 Category.
The U.S. Department of State (DOS) released the February 2009 Visa Bulletin on January 13, 2009. 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.
We are pleased to see an advancement of six months for both India and China’s EB-2 Category, however are extremely disappointed with the lack of advancement in EB-3. Although visa numbers for China and Mexico have advanced by 4-5 months, all chargeability areas, India, and the Philippines remain stuck in backlogs.
Since there are so many I-485’s and I-140’s that are pending which have not been adjudicated at the service centers, and the U.S. Department of Labor has consolidated the two PERM processing centers into one, backlogged cases have been increasing in great numbers. USCIS intends to digest these cases before they see many new I-140’s come in. Therefore, most likely, we will not see a significant move for the EB-3 category for some time.
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 October 2008.
In a recent non-precedent decision, the AAO holds that a 5-year M.B.B.S. degree from India is the equivalent of a U.S. M.D. degree and discusses evidence of degree equivalency.
In recent decisions the Texas Service Center has been erroneously denying EB-2 I-140 petitions based upon Labor Certifications which require an MD. The Service has continuously made an issue of foreign degrees from India focusing on the number of years spent in pursuit of a degree, as opposed the units and content of the coursework. It is often common for many three-year Indian degrees to be denied as equivalent at the I-140 stage however this is the first time that Medical Degrees have come into question.
Both the US Department of Education, and Educational Commission for Foreign Medical Graduates have verified and supported the fact that the Indian MBBS degree is seen as equivalent to an MD due to the fact that this achievement alone qualifies an individual to apply for medical residencies and fellowships in the U.S.
USCIS has maintained their stance on denying these petitions claiming that, because the physician does not first undergo a baccalaureate program, and then obtain a graduate medical degree, they cannot consider the applicant to have me the degree requirement.
In the AAO’s ruling, they have focused on the fact that the Service may not ignore a term of the labor certification, nor may it impose additional requirements. USCIS cannot and should not reasonable be expected to look beyond the plain language of the labor certification that DOL has formally issued or otherwise attempt to diving the employer’s intentions through some sore of reverse engineering of the labor certification.
Additionally, they have determined that the American Association of Collegiate Registrars and Admissions Officers (AACRAO) which is comprised of over 10,000 higher education admissions and registration professionals, has supported that the MBBS represents the attainment of a level of education comparable to a first professional degree in medicine.
U.S. Citizenship and Immigration Services (USCIS) announced on January 8, 2009 that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009).
USCIS records will now reflect Jan. 7, 2009 as the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.
USCIS will begin rejecting petitions for new H-2B workers which are seeking employment start dates prior to October 1, 2009. If deemed necessary, USCIS may apply a computer-generated random selection process to all petitions that are subject to the cap and received on Jan. 7, 2009 in order to select the number of petitions needed to meet the cap.
USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap.
Anyone waiting in the line to adjust their status to that of a Permanent resident has clearly felt the effects of a broken immigration system. Many applicants have been forced again to start the year off with a foot in the past due to the lack of movement in the January 2009 Visa Bulletin. Many pending applicants and hopefuls wanting to permanent residence, are stuck in a backlog that may take years to overcome. Those aliens waiting in the second and third preference categories from China and India have the worst deal yet.
Many supporters of president-elect Obama are hoping for some type of Immigration Reform legislation in 2009. Many politicians are aware of the long lines and hold-ups involved in the immigration problem however nothing has been done to solve this problem. One thing for sure is the need for immediate action to provide adequate medical care. Such relief can be found in nurses and other health care professionals who are also stuck in a four year retrogression of visa numbers.
So what can be done to avoid the uncertainty and slothful movement of employment-based priority dates? Applicants could always consider the EB-5 category for immigrant investors. Annual allocation of visas in the EB-5 category is 10,000, not less than 3,000 of which are reserved for investors in so-called Targeted Employment Area’s and 3,000 reserved for investors in USCIS designated Regional Center’s (“RC’s). There is no current backlog in the EB-5 category, nor has there ever been.
Pursuing an IV through the EB-5 program does not require an individual to abandon any pending or approved Labor Certifications, IV petitions (such as an I-140 petition), or pending I-485 application that a U.S. employer has filed on their behalf. Individuals pursuing permanent residence through both conventional employment-based methods and the EB-5 category can pursue these options concurrent, essentially seeing which process gets them to the finish line first.
Along with its benefits, the EB-5 category also involves some risk. Half a million dollars is a lot of money for most people. However, for an Indian national waiting for more than seven-and-a-half years to be eligible for permanent residence this may be an ideal solution to end their waiting. With the current economic downturn leading to job losses and a weak labor market some people may end up losing their priority date creating further backlogs.
Considering the state of the economy some naysayers may argue that the timing could hardly be worse to invest $500,000 in an EB-5 project, paradoxically, the timing may never be better. Buying at the bottom of the market will always show a greater percentage gain when the market recovers (and may make the I-829 removal of conditions application an easier proposition). While the current economic news is overwhelming negative, this situation will not last forever. The economy will improve. It always has and always will.
Section 5 – USCIS addresses the extreme emergent situation on shortage of visa numbers for healthcare workers.
The United States Citizenship & Immigration Services (USCIS) recently released an article addressing the nursing shortage which is becoming increasingly problematic to the health care industry. According to a U.S. Department of Health study, the U.S. will require about 1.2 million new Registered Nurses (RN’s) by 2014 in order to meet the growing demand for nursing.
One suggestion from the USCIS is that the agency take steps similar to those of the Department of Labor (DOL). The DOL has allowed precertification of Labor Certifications for RN’s and Physical Therapists designating them as Schedule A occupations.
Despite the DOL’s expedited step to address the issue of the shortage of nurses, visa availability continues to be the principal obstacle for many immigrants and non-immigrants seeking employment in the U.S.
Many political leaders, healthcare agencies, and hospitals are asking that the USCIS adjust its normal procedures for processing Schedule A nurse applications and separate, prioritize, and centralize the processing of these petitions. One thing for sure is that action needs to be taken to ensure the expeditious processing of Schedule A nurse applications.
In a drastic departure from years of legal standards, Attorney General Michael Mukasey has ended the practice of allowing immigrants to reopen immigration cases that have been lost because of their lawyers’ mistakes or incompetence. Mukasey’s order, which is effective immediately, has determined that there is no fifth amendment right to counsel which may lead to the deportation of innumerable immigrants who have lost their cases due to attorney error.
The Attorney General stated that the right to counsel was a “privilege,” and that the right was merely statutory and not constitutionally protected under the Fifth Amendment. Standard immigration practice has established that the right to counsel was considered “fundamental” and a “due process right”, one that the Ninth Circuit Court of Appeals indicated “must be respected in substance as well as in name.” The Attorney General’s decision has now called into question our understanding of this fundamental right.
The U.S. Customs and Border Protection (CBP) wants to remind all U.S. and Canadian citizens that they will have to meet the new document requirements at the land border crossings beginning 2009 and is asking them to obtain the appropriate documents in advance.
On June 1, the Western Hemisphere Travel Initiative will go into effect at land and sea ports of entry, requiring travelers – including U.S. citizens and Canadian citizens – to present an approved travel document to enter the United States.
The approved list of documents includes:
• Passport, a passport card, a NEXUS, SENTRI or FAST;
• Trusted traveler program card or a state- or province-issued;
• Enhanced driver’s license.
Travelers under age 16 need to present only a birth certificate or alternative proof of citizenship. For specific information on acceptable documents and how to apply for them visit our website at http://globallawcenters.com. Travelers without appropriate
travel documents may face delays as CBP officers attempt to verify identity and citizenship.
Both today and after June 1, lawful permanent residents of the United States should present acceptable evidence of their lawful residence status when entering the country, such as a Permanent Resident Card (I-551). A passport is not required.
Need information about recent USCIS changes? Visit our website at http://globallawcenters.com where you can find USCIS Press Releases and Memos addressing topics about New USCIS procedures, H-1B Caps, Fee Changes, and much more!