Bill Would Scrap Per-Country Limit for Employment-Based Immigration

Foreign hi-tech professionals are getting pumped-up recently.  

A  bipartisan group of 114 members in Congress has brought forth a bill proposing substantial changes to how immigration visas are distributed.  The H.R. 1044 bill, titled Fairness for High-Skilled Immigrants Act, aims to amend the Immigration and Nationality Act (INA) in favor of immigrants from large countries.  

The main changes are to remove per-country limitations for employment-based (EB) immigration and increase per-country limitation for family-based immigration to 15% from 7 %.

The bill also proposes to remove the "offset" from the Chinese Student Protection Act (CSPA). The CSPA allowed for many Chinese nationals to immigrate to the U.S. in a short time span. It also implemented an offset of 1,000 visas every fiscal year to account for the influx of Chinese immigrants.

Professionals from high-population countries like India and China stand to benefit greatly from the removal of per-country limitations for employment categories. There is currently a backlog of immigration cases for EB categories in these countries. Visa numbers are in high demand, and the backlog is sizable. Applicants must wait years for available immigrant visas. The scrapping of per-country limits would provide substantial relief to these backlogs and allow many more of these countries' natives to immigrate.

Family-based immigration is facing a similar backlog issue, with applicants from countries such as Mexico and the Philippines facing extremely long wait times. The increase of per-country limitations from 7% to 15% would be a welcome change for these families. 

The bill details a 3-year transitional plan that reserves 15%, then 10% of EB-2, EB-3, and EB-5 visas for countries other than the top two with the most approved petitions of the listed categories. The reserved visas will be 15% in FY 2020, then 10% in 2021 and 2022. During this period, one country may not have more than 25% of total available visas.

The proposed changes contrast greatly with the immigration policy of the current administration. It is  still unclear whether this bill will finally become law, given the current political environment.  The House already passed the bill on 07/10/2019. Thus far the Senate does not have enough sponsors to pass the bill.  Even if the bill was passed by Congress, President Trump would still have the power to veto it.  If that happens, the veto can only be overridden only by a two-thirds vote in both the Senate and the House.

August 2019 Visa Bulletin: EB-1 Retrogresses; Family advances

For August, Family-based immigration has advancements across most categories. 

Employment-based immigration mostly retrogress in August: 

• EB-1 China retrogresses 10 months. Other countries retrogress 21 months. EB-2 and EB-3 China move forward for 2 months and 6 months respectfully. 
• EB-3 and Other Workers India retrogress 3.5 years. 
• EB-2, EB-3, and Other Workers for Mexico, Philippines, Vietnam, and Other Countries now all have cutoff dates.
• EB-5 India retrogresses 2.5 years and EB-5 Vietnam falls back for 2 years. 

Note:  The August 2019 Final Action Dates have been imposed on the EB-3 and EB-3 Other Workers preference categories as of July 11, 2019.  This change was required to control visa number use within the annual limits, according to the Department of State.

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

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	07/01/2012	07/01/2012	07/01/2012	08/01/1996	02/22/2008
	FD	03/01/2013	03/01/2013	03/01/2013	11/01/1999	08/22/2008
F2A	AD	C	C	C	C	C
	FD	06/01/2019	06/01/2019	06/01/2019	06/01/2019	06/01/2019
F2B	AD	01/01/2014	01/01/2014	01/01/2014	06/01/1998	04/01/2008
	FD	09/01/2014	09/01/2014	09/01/2014	02/01/1999	11/01/2008
F3	AD	06/22/2007	06/22/2007	06/22/2007	12/01/1995	10/01/1997
	FD	12/22/2007	12/22/2007	12/22/2007	07/15/2000	04/01/1998
F4	AD	10/01/2006	10/01/2006	09/15/2004	01/01/1997	05/01/1998
	FD	12/15/2006	12/15/2006	05/15/2005	12/15/1998	11/01/1998

1st: Unmarried Sons and Daughters of Citizens (about 23,400 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 23,400 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	Vietnam
EB1	AD	07/01/2016	07/01/2016	07/01/2016	01/01/2015	07/01/2016	07/01/2016	07/01/2016
	FD	09/01/2018	10/01/2017	09/01/2018	10/01/2017	09/01/2018	09/01/2018	C
EB2	AD	01/01/2017	01/01/2017	01/01/2017	05/02/2009	01/01/2017	01/01/2017	01/01/2017
	FD	C	02/01/2017	C	06/01/2009	C	C	C
EB3	AD	07/01/2016	07/01/2016	07/01/2016	01/01/20 06	07/01/2016	07/01/2016	07/01/2016
	FD	C	06/01/2016	C	04/01/2010	C	C	C
Other Workers	AD	07/01/2016	11/22/2007	07/01/2016	01/01/2006	07/01/2016	07/01/2016	07/01/2016
	FD	C	06/01/2008	C	04/01/2010	C	C	C
EB4	AD	C	C	07/01/2016	C	07/01/2016	C	C
	FD	C	C	09/01/2016	C	C	C	C
EB5	AD	C	10/15/2014	C	10/15/2014	C	C	10/15/2014
	FD	C	11/15/2014	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)

Inadmissible as Totalitarian or Communist Member

Those applying for a U.S. green card may be affected by their past party membership in other countries. An applicant can be denied permanent residence through a number of grounds of  inadmissibility. One that many applicants struggle with is membership in a totalitarian party, which by statute includes the Communist party.

Membership in a Communist or totalitarian party renders an applicant inadmissible, pursuant to Section 212(a)(3)(D) of the Immigration and Nationality Act. This can be a problem for applicants such as Chinese nationals. Some of them joined the Chinese Communist Party (CCP) voluntarily while others were pressured to join to secure employment opportunities or other government benefits.  It is common for these members to then pay a monthly membership due for the party but otherwise continue their lives as normal. Should these people be prevented from applying for a green card?

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The immigration law recognizes that membership does not necessarily mean belief in the party's values. There are several exceptions to this ground of inadmissibility due to totalitarian membership. 

One exception is involuntary membership, which can occur when an applicant is added to the party without his/her permission or knowledge. For example, membership that began before the age 16 is ignored by the statute.  Similarly, membership that was required in order to attain living necessities (i.e. food rations) are exceptions. 

Sometimes a person may be under immense pressure and threat of consequences to join a political party.  If so, one may also argue that his/her membership in a totalitarian party is not voluntary.  

The law also exempts past membership that ended at least 2 years before the date of filing one's green card application. If a person's membership is with a totalitarian party that also controls the government (e.g., the CCP), membership will need to have terminated at least 5 years before application in order for the exemption to apply. 

The U.S. Supreme Court has also held that a person is not inadmissible if his membership in a totalitarian party is not "meaningful". See Rowoldt v. Perfetto, 355 U.S. 115 (1957) (Communist Party membership devoid of any political implications are not meaningful enough to render the petitioner inadmissible).  It means that if a person does not understand or truly believe in the political and ideological convictions of the party, his membership is only in form rather than substance.  As such, the person should not be punished for merely joining the party. 

Some applicants wish to join their family in America but are unable to due to their past membership. Exceptions (called waivers) are made for those who are the parent, spouse, son/daughter, or sibling of a U.S. citizen. Similarly, the spouse or son/daughter of a legal permanent resident can have their inadmissibility waived.  The U.S. government may agree to waive these applicant's inadmissibility grounds for humanitarian reasons, to ensure family unity, or if doing so is in the public interest.  Further, to be eligible for a waiver, an applicant must also not be a threat to national security. 

In connection with these waiver applications, some USCIS field offices also request for proof that the applicant no longer has ties with the totalitarian or communist state.  These may include family ties and property ties.  Although such proof is not a statutory requirement, it is a discretionary factor that USCIS may consider in adjudicating the waiver application. 

Cases involving inadmissibility grounds are complex, requiring in-depth factual and legal analysis.  A person with past totalitarian or communist party membership should consult with an experienced attorney before filing their green card applications.  

Family 2A Applicants May File I-485 Applications in July

As of June 26th, USCIS has confirmed that applicants under Family 2nd Preference (F2A) category should file according to the July visa bulletin's Final Action Dates. This means F2A applicants currently in the U.S. may file their I-485 adjustment applications in July. This is an exception to the other family-sponsored preferences, which must follow the Dates for Filing. 

The F2A category is for green card holders to sponsor spouses and unmarried children under the age of 21 to immigrate to the U.S. For many years this category has had a waiting time of at least several years. This meant that if a U.S. green card holder married a foreigner, she would then have to wait a few years before her spouse could obtain his own green card. In reality, this often results in green card holders having to live separately from their foreign spouses after marriage.  The same delay also occurred in petitions for minor children under the age of 21 by their permanent resident parents. This is because F2A is one of the several "family preference" petitions, which are subject to an annual visa quota set by Congress.

The F2A petitions contrast with the "immediate relative" visa petitions filed by U.S. citizens for their spouses and children, which are not subject to the annual visa quota.  The differences between these two types of petitions have created hardship for green card holders and their families.  

For the first time in many years, F2A is “current” on the Final Action Dates chart in July. All eligible spouses and children of green card holders may apply for adjustment of status by filing the I-485 application. Adjustment of status is a legal process through which one may obtain permanent resident status.  By submitting their I-485 applications, these family members are authorized by law to stay in the U.S.  while waiting for their adjustment applications to be decided.  

Additionally, these family members may file for an employment authorization document (Form I-765) and travel document (Form I-131) along with their adjustment application.  With an EAD card in hand, these family members may then apply for driver's licenses and social security numbers. They may also work legally in the United States.  The travel document will also allow them to travel internationally and return to the U.S.  However, those who have failed to maintain lawful status in the U.S. should not depart the country, even with an approved travel document.  In fact, an applicant with previous immigration violations should seek the advice of an experienced immigration attorney before submitting their green card application.

To view all the visa bulletins for July, click here.

ICE Operation to Target Family Units Halted

Immigration and Customs Enforcement (ICE) has planned a major operation to reduce the number of illegal immigrants in the country, this time targeting "family units". It was set to begin on Sunday, June 23rd, but has since been postponed by President Trump.  

The term "family unit" is used by the Department of Homeland Security (DHS) to identify cases involving illegal immigrants and their children. Such cases are tracked by the Executive Office for Immigration Review (EOIR) and are monitored as they progress through the immigration court system.

A week before the operations were to begin, President Trump tweeted that "ICE will begin the process of removing millions of illegal aliens". The operation was revealed soon after as a large-scale effort by ICE to round-up illegal family units with final deportation orders or that had missed their court date. It targets ten major U.S. cities -- Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.

According to numbers released by EOIR, Houston and Miami top the list for number of removals from September 2018 through June 2019. Both are at well over 2,000 removals. San Francisco and Baltimore are at the bottom of the list, with 314 and 402 removals respectively. The newly-appointed ICE director stated that the goal of the operation is to lower the number of illegal immigrants by discouraging future attempts to enter the country.

The president delayed the operation a day before it was slated to begin, stating that he will give 2 weeks for Democrats and Republicans to find a solution to asylum problems at the Southern border. The family operation is part of a continued effort by the Trump administration to crack down on illegal immigration. With the 2020 election in sight, it is no coincidence that this incident coincided with the beginning of Trump's re-election campaign.

It is unlikely that the partisan U.S. Congress can actually come up with something quickly within a couple of weeks.  After all, the debates about asylum and immigrant reforms have been going on for many years.  At the same time, it is not also not possible for ICE to deport "millions" even if the President wants to.  The agency simply does not have the manpower and resources to handle such an operation, given other more pressing priorities such as removal of criminal and terrorist aliens.  What is clear is that, these threats of massive raids and arrests of family units have already caused tremendous fears and anxiety in the immigrant communities.  

Child Status Protection Act: Delays Are Actually Better For Some

(This article was written in 2006 for ilw.com.)

The Child Status Protection Act (CSPA), Pub. L. 107-208 (Aug. 6, 2002), was enacted to allow certain "aged-out" children to lock in their age so that they are eligible to become legal residents despite delays in the processing of their visa petitions. However, for certain children of non-citizens, the only way that they may benefit from the provisions of CSPA is by virtue of an agency delay.

Before CSPA was passed, a child who was under 21 when her visa petition was filed would become ineligible for lawful permanent residency if, by the time the application for residency was finally adjudicated, the child had turned 21. Under the Immigration and Nationality Act (INA), an applicant is no longer considered as a "child" on the day she turns 21. INA § 101(b)(1). The CSPA was conceived and enacted to address this issue by allowing a child to apply for legal residence status even if they had turned 21, if their visa petitions were filed prior to the age of 21. The stated intent of CSPA was to counter processing delays of immigrant petitions.

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The coverage of CSPA is quite broad, covering not only children of U.S. citizens, but also children of refugees and asylees, as well as direct and derivative beneficiaries of other family and employment-based visa categories. See, e.g., INA §§ 203(h)(2) and 208(b)(3). As far as the child of a U.S. citizen is concerned, her age will be locked in as of the date the underlying visa petition was properly filed with the government. For example, if the child is 20 when the visa petition is filed, she will continue to be considered 20 regardless when her visa application or adjustment application is adjudicated. Two other similar benefits are also conferred upon children of U.S. citizens under CSPA. [1]

While children of U.S. citizens enjoy relatively simple and direct benefits under CSPA, children of LPRs and other categories of applicants must first apply a mathematical formula to calculate their "age" for the purpose of CSPA to determine whether or not they are eligible for CSPA benefits. First of all, the child's age at the time a visa number becomes available is to be determined; then, reduce this age by the number of days that the underlying visa petition is pending with government; finally, the beneficiary child must seek LPR status within one year of the date of visa availability in order to lock in this age.[2]

Step one is to determine the child's age at the time a visa becomes available. According to the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS), the date of "visa availability" is the first day of the month in which the priority date becomes current, as published in the DOS Visa Bulletin. However, both the Legacy INS and DOS have also interpreted that, if the immigrant petition is approved after the priority date has become current, the date of approval is the date of "visa availability." [3]

Step two is to subtract the number of days that the visa petition has been pending from the age above. The agencies have uniformly decided that a petition is considered "pending" for CSPA purposes from the date it was filed until the date it is approved. [4] This interpretation has so far not been challenged.

The following two examples will illustrate the application of this formula:

• Child #1's Form I-130 visa petition was filed in June 2000 by her LPR parent when she was 20 ½. The priority date became current on 1 June 2001 and her I-130 was approved in June 2001. An adjustment application was filed a month later. Applying the formula, the child's age when a visa number becomes available was 21 ½. However, since the I-130 was pending for one year, her age was reduced by one year to 20 ½. Therefore, she would be eligible to apply for LPR status as a child.

• Child #2 has the exact same facts, except that her I-130 visa petition was adjudicated and approved earlier, in November 2000. Applying the formula again, Child#2 was still 21 ½ when there was a visa number available. However, since the I-130 was pending for only five months, her CSPA age would only be reduced by five months to 21 and one month, and she would not be eligible to apply for LPR status as a child.

Although one of the reasons for the enactment of the CSPA was to counter administrative and processing delays, the current interpretation of the statute has indirectly created an inherent unfairness in the application process among the children of LPR parents. In the examples above, Child#1 and #2 both shared the exact same attributes and exercised equal diligence to pursue their LPR status. But they were subject to different treatment under CSPA based on events completely outside of their control. In fact, they could be twins in the same family with the same date of birth but would end up immigrating to the U.S. years apart.

Given the large volume of visa petitions and asylum and refugee applications, and regional differences, it is not unusual for the same type of applications to be adjudicated on very different dates. For children of non-citizens, their path to U.S. residency under CSPA could depend on one single event: when their immigrant petition is adjudicated. Under the current interpretations of the CSPA, ironically, delays in adjudication will sometimes be beneficial to them.

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Endnotes
¹ CSPA § 2 provides two more benefits for children of U.S. citizens. First, when a LPR parent who has filed a family 2A preference petition for his child becomes a citizen, then the age of the child will be locked in on the date of the parent's naturalization and, if the child is under 21 on that date, she will be classified as an immediate relative. Secondly, when a USC parent files a petition for a married son or daughter under the family 3rd preference category, and if the marriage is terminated during the pending of the petition, the child's age will locked in as of the date of termination of the marriage. If such a child is under 21, he or she will be classified as an immediate relative under CSPA.
² CSPA § 3, codified at §203(h) of the INA.
³ See The Child Status Protection Act - Memorandum No. 2, Johnny N. Williams (Legacy INS) (Feb. 14, 2003); DOS Cable on Child Status Protection Act (posted on AILA InfoNet at Doc. No. 02090940 (Sept. 9, 2002)).
⁴ Id.; See, also, Matter of Garcia (BIA Unpublished Decision, June 16, 2006); Matter of Kim (BIA Unpublished Decision, June 7, 2006).