A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, July 16, 2016

August 2016 Visa Bulletin: EB1 China and India Cutoff Dates


In the August 2016 Visa Bulletin, as predicted, a cutoff date of 01/01/2010 has been imposed to EB1 China and India's for Final Action.  The good news is that they are expected to become current again in October.  
A cutoff date has also been imposed in the EB2 Other Countries, Mexico and Philippines, for the first time. 
Final Action dates advance moderately for India, Mexico and Other Countries.  Final Action dates for Philippines' EB2 and EB3 categories move forward significantly by 3 months. The Filing Date of Philippines' EB3 also advances 3 years.  

Most family categories' Final Action dates advance moderately. China and India's F1 move forward by 3 months; F2B move forward by 1 and 1/2 months. 


AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
05/22/2009
05/22/2009
05/22/2009
03/08/1995
03/22/2005
FD
01/01/2010
01/01/2010
01/01/2010
04/01/1995
12/22/2005
F2A
AD
11/15/2014
11/15/2014
11/15/2014
09/01/2014
11/15/2014
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
01/08/2010
01/08/2010
01/08/2010
09/08/1995
09/15/2005
FD
02/08/2011
02/08/2011
02/08/2011
05/22/1996
02/01/2006
F3
AD
12/01/2004
12/01/2004
12/01/2004
10/22/1994
03/15/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
08/01/1995
F4
AD
09/15/2003
01/01/2003
01/01/2001
04/15/1997
02/01/1993
FD
06/15/2004
06/15/2004
05/01/2004
06/01/1998
07/15/1993

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)




EMPLOYMENT
Other Countries
China
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
01/01/2010
C
01/01/2010
C
C
FD
C
C
N/A
C
C
C
EB2
AD
02/01/2014
01/01/2010
02/01/2014
11/15/2004
02/01/201402/01/2014
FD
C
06/01/2013
N/A
07/01/2009
C
C
      EB3
AD
03/15/2016
01/01/2010
03/15/2016
11/08/2004
03/15/2016
05/15/2009
FD
C
05/01/2015
N/A
07/01/2005
C
01/01/2013
    Other    Workers
AD
03/15/2016
01/01/2004
03/15/2016
11/08/2004
03/15/2016
05/15/2009
FD
C
08/01/2009
N/A
07/01/2005
C
01/01/2013
EB4
AD
C
C
01/01/2010
01/01/2010
01/01/2010
C
FD
C
C
N/A
C
C
C
EB5
AD
C
02/15/2014
C
C
C
C
FD
C
05/01/2015
N/A
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Tuesday, June 28, 2016

Sorry, But I Didn't Know!

Imagine you travel to another country that does not allow nose-picking in the public, but you don't know that and you start picking your itchy nose upon arrival at the airport.  You are arrested instantly. You explain to the police officer that you didn't know that it was unlawful to pick your nose.  "We don't care if you know or not," says the police officer with a stern voice.

Yes, in many countries including the United States, one may not avoid legal penalties after breaking the law by claiming ignorance.  The reason is that, if ignorance of the law can be used as a defense, everybody would use it as an excuse after committing a crime.  And it would be difficult for the government to punish any wrongdoing. 

People from other countries come to the United States to study, to seek employment opportunities, to seek freedom and to start a new life.  While pursuing their dreams in this great nation, sometimes they would do things that are not entirely legal according to American laws.  A foreign student may start working under the table to help pay for his tuition.  A newcomer may start driving to get to work before she obtains her driver's license.  An H-1B foreign worker may work at a job-site that has not been approved for. However, when their unlawful acts are caught by the authorities, the consequences can be very serious.  Their visas could be cancelled and they stay terminated.  

When foreigners are accused of wrongdoing, it is not unusual for them to claim some degree of ignorance - "Sorry but I didn't know," "My friend told me it was okay to do it." or "I thought it was wrong to do that but it's okay to do this," etc.  Granted, some of them are only trying to avoid responsibilities by claiming ignorance.  Some others, I believe, are actually telling the truth.  

In the context of immigration, there are thousands of regulations, and the policies are constantly changing.  For example, take something as simple as the immigration forms as an example.  It is not unusual for the DHS to change the forms and the related instructions on a yearly basis. It is not easy to figure out who is the petitioner, applicant, beneficiary, requester, preparer, translator, etc.  A person can be the beneficiary in the Form I-130 but the same person has become the petitioner in Form I-751.  The immigration statutes, regulations, administrative decisions, court decisions, policy memos, etc., are even more difficult to follow, even for seasoned immigration professionals.   No wonder some people say the complexity of immigration laws rivals tax laws. 

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Hence, it is not difficult to understand why a foreigner with a different cultural background and limited English proficiency may not fully understand the intricacies of the legal requirements imposed by various government agencies. After all, foreign nationals didn't come here to study American laws; they are here to study engineering, to seek employment opportunities, to invest their capital, to start their business, and to seek religious or political freedom.  Yet, when they are caught violating the law, even a minor offense or technical violation, the result could be deportation from the United States. Remember, ignorance of the law is not an excuse!

If we are a nation that takes pride in welcoming visitors and foreigners, and if America is truly a melting pot, then maybe we should do more to educate foreigners about our laws and requirements. Few people are confused about what acts the Ten Commandments prohibit.  Adults and children alike need clear boundaries regarding their actions. Multilingual pamphlets placed at the ports of entry are a good starting point.  Instead of the 9-point fine print warnings in visa application forms, why don't we pass out literature written in simple English and printed in big, bold letters to visa applicants at American Embassies outlining what they may or may not do in the United States.  One caveat - since the immigration laws and policies are not always clear-cut and change constantly, it would be necessary to revise these educational materials regularly to provide the most updated information to foreigners.


It would also be in America's interests to provide advance warnings to foreign nationals. We spend millions and millions of dollars in enforcing the immigration laws and removing foreign nationals every year.  (We went as far as setting up and operating a bogus university - University of North New Jersey - to counter student visa fraud.)  With early warnings and effective education, we could reduce our enforcement costs substantially.  To be fair, the Department of Homeland Security has already implemented various initiatives, such as public outreach meetings, multilingual webpages and online materials, etc.,  to educate the public regarding various immigration programs.   We are moving in the right direction, but more needs to be done.  As the saying goes, an ounce of prevention is worth a pound of cure.  

Friday, June 24, 2016

Supreme Court Affirmed Block of Deferred Action for Parents of American Citizens/Residents

Perhaps the recent Supreme Court decision should not come as a big surprise.  After the passing of Justice Antonin Scalia, the Supreme Court was left with only eight (8) Justices, and a 4-4 split decision is likely in cases involving controversial or political issues. In United States vs. Texas, the U.S. Government requested to overturn an injunction against implementation of two immigration programs initiated by the Obama Administration - (1) Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), (2) Expanded Deferred Action Program for Childhood Arrivals (DACA) program.  Since the Supreme Court was equally divided along ideological lines, the Fifth Circuit Court of Appeals' decision blocking these programs was affirmed.

The DAPA and expanded DACA programs have been opposed by conservative groups right from the beginning.  Deferred action programs are nothing new in the context of immigration.  In fact, previous presidents from both the Republican and Democratic parties, including Eisenhower, Reagan, Bush and Obama, have taken similar actions to alleviate various immigration problems.  

Ordinarily the legislative branch of the government should pass laws to handle immigration matters including individuals who are in the U.S. illegally. Unfortunately due to political reasons, the partition Congress has not been able to function properly. In the absence of Congressional acts, it is both reasonable and necessary for the executive branch to take appropriate actions.  Deferred action is one of the inherent powers of the president that can be used to deal with millions of individual unlawfully present in the U.S.  United States vs. Texas tested the limits of this executive power. 

The Supreme Court decision in Texas, however, may not be as significant as the headlines suggest. First of all, the split decision sets no Supreme Court precedent. In fact, the Court only issued a one-line decision without opinions.  Since it was an equally split decision, the lower court's decision will stand automatically. It is also important to note that Supreme Court decision does not affect the Deferred Action for Childhood Arrival (DACA) of 2012.  Individuals who were found eligible under the 2012 DACA program may continue to extend their deferred action status under the existing regulations.  

It is unfortunate that the Supreme Court was not able to take this opportunity to settle the challenge to deferred action and set legal guidance for future programs.  However, there will be other opportunities for precedent decisions by the Supreme Court, as federal courts continue to hear and decide cases involving similar immigrant issues.   One thing that we can rely on is that America's immigration laws and policies never stay the same for too long.  Political changes (Ex. presidential elections), economic climate, shifts in cultural paradigms, etc., will keep on changing that nation's policies and attitudes towards immigration.  


Thursday, June 23, 2016

Relocation Requirement Not A Basis For Labor Cert Denial

Since the dot.com era, the IT consulting business has firmly found its place in the corporate world. Rather than hiring permanent employees, companies prefer to hire "contractors" or "consultants" to perform certain IT functions for both cost control and efficiency.  The nature of the IT consulting business often requires the consultants to work at different locations for various periods of time. Such requirement introduced another level of complication in the permanent foreign labor application filed on behalf of these IT consultants. A certified labor application is normally required before an employer may petition for a foreign worker to work permanently in the United States.

Recently, such a labor application was denied by the Certifying Officer at DOL because the employer failed to list the relocation requirement in the recruiting documents and also on the PERM labor application (ETA Form 9089) for a position with a primary work site "and various unanticipated locations throughout the U.S."

The Appeals Board (BALCA) reversed the denial and granted certification on appeal.  In this case (Matter of Infosys, 2016-PER-00074), the employer included a requirement for travel in the labor application, and argued that there is no major distinction between travel and relocation.  The employer relied on a 1994 memo of DOL known as the "Farmer Memo" because it was issued by Barbara Ann Farmer, Administrator for Regional Management at the time.

The Appeals Board agreed with the employer that it was sufficient to mention about travel in the application because relocation can be inferred from the travel requirement and also the job description.  By virtue of the fact that the job requires the employee to work at various unanticipated locations throughout the U.S.,  potential job applicants should expect that relocation to other parts of the country is required in order to perform the job duties.  The Certifying Officer also relied on some previous cases involving the same issue which were denied by the Board. These cases, however, are distinguishable from the instant case, according to the Board.  These cases, for example, Patel Consultants Corp., 2011-PER-535 (Feb. 27, 2012), were denied because of direct inconsistencies between the language in the advertising and the PERM labor application.

The Board also granted certification based on the principles of fundamental fairness.  The Farmer memo allowed employers to file the labor application at the local office where the employer's headquarter office is located in situations where the employee is required to work at various locations in the U.S.  The Farmer does not distinguish between travel and relocation.  There has been no other guidance from the Labor Department despite repeated requests from the organized immigration bar on this particular issue.

Further, the petitioner in the case (and also many other employers) has used the same approach and language in many other labor applications which have been approved by DOL.  The Board found the sudden change in the adjudication standard without prior notice to the employers and the public fundamentally unfair.


Friday, June 17, 2016

Till Death Do We Part With Our Property, But How?

There are only two things that are certain in life, death and taxes, as the American saying goes. Even at death, one still cannot escape Uncle Sam's taxing power.  Advance planning is important not only for tax purposes but also for an efficient distribution of your assets.   Before we can come up with a plan, we need to first understand how property passes at death.

Broadly speaking, when a person dies, her assets are divided into three categories.  First, assets can be passed down through contractual arrangement to a predesignated beneficiary. Retirement accounts such as 401(k), 403(b), IRA, SEP, KEOGH, etc., belong to this category.  Other assets such as life insurance contracts, annuity contracts, transfer-on-death (TOD) accounts, etc., also have named beneficiaries.  These assets will pass down according to the beneficiary designation without regards to the provisions of our wills unless we specifically name our estate as the beneficiary.

The second category of assets are those that are held in joint tenancy with rights of survivorship (JTWROS).  Like the named beneficiary above, the surviving joint tenant will take property automatically by "operation of law."  For examples, many couples hold their bank accounts as joint tenants with rights of survivorship. Again, these assets are not controlled by our wills.

The last category of assets include everything that is held in our individual names, regardless of what they are or where they are located. Assets held as community property and tenants in common are also in this category.  The significance of this category of these assets is that we can control how and to whom they are distributed.  The legal instrument that we use to distribute these assets is our last will and testament, or our will.  It is important to note that the contracts and JTWROS above take effect first before the provisions of our will are executed. Although the first two groups of assets are not probated, some of them (e.g., retirement accounts) are still considered part of our estate for tax purposes.

It may seem easier to place assets in the first two categories, but your will is the legal tool that can achieve efficiency and tax savings.  For instances, many couples employ tools such as credit shelter trusts and marital trusts in their wills to maximize their tax savings.  In addition to a will, a durable power of attorney and a combined health care power of attorney/living will are also critical legal documents for estate planning and other legal purposes.  A durable power of attorney allows you to designate a legal representative to take care of your financial affairs if you become physically or mentally incapable.  Similarly, a health care power of attorney and a living will will allow you to make health care decisions in advance and also appoint another person to make such decisions for you when you become disabled or sick. 

Monday, June 13, 2016

Visa Bulletin Predictions by DOS’s Charlie Oppenheim - July 2016 and Onward


Following the publication of the July 2016 Visa Bulletin, as usual, Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, met with AILA to provide his insights, analyses and predictions regarding the future movement of the various immigrant preference categories. The following are the highlights of the discussions:

Family-Based Categories:   Charlie mentioned last month the possibility of FB-4 China advancing this fiscal year before October. Such advancement would only happen if there is a decrease in demand in the FB-1, FB-2, and FB-3 preference categories. Charlie expects that this category will recover to the prior cut-off date of July 2003 by November as a result of the availability of the new fiscal year's visa numbers.

"Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Charlie predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Charlie anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year."

EB-1 China and India:  Charlie expects a cutoff date for China and India EB-1 in either August or September.  However, they are expected to become current again in October. A cut-off date will not be imposed for EB-1 for other countries this fiscal year.

China EB-2 and EB-3:  Charlie does not expect any forward movement in either of these categories this fiscal year.

EB-2 Worldwide:  It is likely that a cut-off date will be imposed for EB-2 Worldwide by September. Demand continues to be high for this category.  According to Charlie, just in May alone, 4,300 EB-2 numbers were used worldwide (including PRC and EB-2 India demand). 

EB-2 India:  "Charlie anticipates EB-2 India’s final action date will be one week beyond EB-3 India through the rest of the fiscal year. Based on current usage, there should be sufficient available unused EB-3 numbers worldwide to enable moderate forward movement in India EB-3 in the month of September."

"EB-4 and Certain Religious Workers (SR) Preference Categories. As previously predicted, and noted in the July Visa Bulletin, a cut-off date of January 1, 2010 will be imposed in July for EB-4 Mexico. This is the same cut-off date imposed earlier this fiscal year for EB-4 El Salvador, Guatemala, and Honduras. There will be no forward movement in these categories prior to the end of the fiscal year."

"Despite the cut-off date in these categories, it is expected that EB-4 Mexico will become current in October and EB-4 El Salvador, Guatemala, and Honduras should advance to a 2015 cutoff date. A more precise prediction of the cut-off cannot be made until pending demand in September is reviewed."

EB-4 India Cut-Off:  A cutoff date for EB-4 India will be imposed for August, according to Charlie.


(AILA Doc. No. 14071401)

July 2016 Visa Bulletin

The July 2016 Visa Bulletin contains no big surprises.  There is very little movement in the employment visa categories, and major forward movements are unlikely for the last few months of the fiscal year.  The "final action" dates for India’s EB-2 and EB-3 move forward by one month. Mexico's EB4 category, like  El Salvador, Guatemala and Honduras, also has a cut-off date of 01/01/2010 

Most of the families visa categories have moderate forward movement. Both China and India's F1 move forward by two months, while F2A and F2B advance by about two weeks. But F3 and F4 remain unchanged.

AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
03/22/2009
03/22/2009
03/22/2009
03/08/1995
02/01/2005
FD
10/01/2009
10/01/2009
10/01/2009
04/01/1995
09/01/2005
F2A
AD
11/15/2014
11/15/2014
11/15/2014
09/01/2014
11/15/2014
FD
10/15/2015
10/15/2015
10/15/2015
10/15/2015
10/15/2015
F2B
AD
12/08/2009
12/08/2009
12/08/2009
09/08/1995
07/01/2005
FD
12/15/2010
12/15/2010
12/15/2010
05/15/1996
01/01/2006
F3
AD
12/01/2004
12/01/2004
12/01/2004
10/22/1994
03/01/1994
FD
08/01/2005
08/01/2005
08/01/2005
05/01/1995
08/01/1995
F4
AD
09/08/2003
01/01/2003
01/01/2001
04/15/1997
01/01/1993
FD
05/01/2004
05/01/2004
05/01/2004
06/01/1998
04/01/1993

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


EMPLOYMENT
Other Countries
China
 El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
C
C
C
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
01/01/2010
C
11/01/2004
C
C
FD
C
06/01/2013
N/A
07/01/2009
C
C
EB3
AD
03/01/2016
01/01/2010
03/01/2016
10/22/2004
03/01/2016
02/15/2009
FD
C
05/01/2015
N/A
07/01/2005
C
01/01/2010
Other Workers
AD
03/01/2016
01/01/2004
03/01/2016
10/22/2004
03/01/2016
02/15/2009
FD
C
08/01/2009
N/A
07/01/2005
C
01/01/2010
EB4
AD
C
C
01/01/2010
C
01/01/2010
C
FD
C
C
N/A
C
C
C
EB5
AD
C
02/15/2014
C
C
C
C
FD
C
C
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)