Changes to the October 2015 Visa Bulletin causes confusion...
On September 9, 2015, the U.S. Dept. of State surprised lots of people by publishing its October Visa Bulletin with 2 different columns and dates used to determine when a visa applicant can apply for lawful permanent residency.
(See previous blog on the new process for determining filing dates for lawful permanent residency. In a nutshell, the new process allows applicants to file their applications prior to the actual 'Priority Date' being current.)
A mere 16 days later, it issued a mea culpa in the form of a new revised October 2015 Visa Bulletin with revised filing dates. Evidently, erroneous information was used to determine the appropriate 'filing dates' for certain immigrant visa preference categories.
As a consequence, the October Visa Bulletin published on September 25, 2015 reflected revised filing dates - particularly for the EB-2 China and India categories - that were not nearly as generous as the original Visa Bulletin published on September 9. (The EB-2 category for China moved backwards nearly 1 year; the EB-2 category for India moved backwards 2 years. The EB-3 category for the Philippines moved backwards 5 years.)
Unfortunately, for prospective immigrants who were excitedly preparing their immigrant visa applications, the amended filing dates proved to be a huge letdown. A lawsuit - Mehta v. DOS, in the Western District of Washington - sought class-action status to compel the U.S. Dept. of State to accept applications filed pursuant to the original October Visa Bulletin published on September 9, 2015. A motion for a Temporary Restraining Order ('TRO') - in effect restraining the implementation of the revised October 2015 Visa Bulletin - was denied, and the case is still pending.
Since then, the November 2015 Visa Bulletin has been published - with very little movement in those categories; and the December 2015 Visa Bulletin should be published in the next week or so -
for now... the wait continues...
Showing posts with label lawful permanent resident. Show all posts
Showing posts with label lawful permanent resident. Show all posts
Tuesday, November 3, 2015
Thursday, September 10, 2015
Finding Your Place In Line For A 'Green Card'
For many foreign nationals living in the United States
waiting to apply for a ‘green card’, a daily routine is to log-on to the U.S.
Department of State website to check the status of their ‘priority date’ on the
State Department’s ‘Visa Bulletin’. Those
who logged in yesterday were surprised to see the publication of the October
2015 Visa Bulletin with an extra Priority Date table. But what does it mean?
It’s a fairly significant new development.
But to grasp its significance, let’s take a step back to
look at the big picture.
The U.S. Department of State regulates the issuance of ‘green
cards’ based upon the distribution of immigrant visas around the world. Since the demand for ‘green cards’ by natives
of some countries (such as China, Mexico and India) is greater than the demand
from other countries, there are not enough immigrant visas to supply the demand
from these oversubscribed countries.
Consequently, there is a backlog of ‘green cards’ for these natives.
Foreign nationals who
originate from these countries must therefore ‘stand in line’ to wait to apply
for their ‘green card’. Their place in
line is determined by the date the
person either filed an immigrant visa petition – or an employer filed a labor
certification application on this person’s behalf. This date is known as a ‘Priority Date’.
Each month the U.S. Department of State publishes a ‘Visa
Bulletin’ that charts the Dates of ‘green card’ applications being
processed. If a foreign national’s own ‘Priority
Date’ is a date that precedes the ‘Priority Date’ published in the Visa Bulletin,
that person is then eligible to file an application for a ‘green card’. For example, if a foreign national has a ‘Priority
Date’ of October 3, 2011, and the Priority Date shown on the Visa Bulletin for
that person’s category shows January 1, 2012, then that foreign national may then
apply for a ‘green card’.
Until the individual’s Priority Date precedes the Priority
Date published in the Visa Bulletin, one could not file an application for a ‘green
card’. Until now…
The October 2015 Visa Bulletin offered a pleasant surprise
for many: a new, second chart known as a
‘Filing Date’ Chart. Under this new provision, the U.S. Department
of State will allow foreign nationals to file
a ‘green card’ application based upon a new ‘Filing Date’ – rather than waiting
for the date previously referred to simply as the ‘Priority Date’. For most visa categories, the ‘Filing Date’
is more recent than the older ‘Priority Date’ (which is now also referred to as
the ‘Final Action’ Date).
What this means is that the ‘Final Action Date’ is the date
that the U.S. Department of State will actually process the ‘green card’
application. This generally corresponds
with the previous ‘Priority Date’ charts to which we were accustomed. In other words, the U.S. Department of State
will still wait until the foreign national’s ‘Priority Date’ is current before
making a decision on the application – but the individual may now file the application well beforehand –
based upon the new ‘Filing Date’ chart.
Why is this
important? Because when a foreign
national gets to file an Application for a ‘green card’, she may also
concurrently file an application for Employment Authorization and Advance
Parole (the ability to travel while the ‘green card’ application is
pending). In other words, ‘green card’
applicants from the oversubscribed countries may get some of the benefits that
accompany a ‘green card’ application while still waiting in line for their ‘green
card’ application to be processed.
So for example, this is how it might work: a foreign
national from China in the EB-2 category (professional holding an advanced
degree) may have a ‘Priority Date’ of June 12, 2013 based upon a Labor
Certification Application filed on her behalf.
The ‘Priority Date’ / (Final Action Date) published in the October 2015 Visa
Bulletin shows the Priority Date for that category to be January 1, 2012. In previous months, this person would have to
continue waiting until the Visa Bulletin shows a Priority Date in that category
after June 12, 2013, before she could file an application – which may be a year
or more away. However, the new Visa
Bulletin now shows a second ‘Filing Date’ chart that shows a date of May 1,
2014. Since the foreign national’s ‘Priority
Date’ precedes this new ‘Filing Date’,
she is eligible to go ahead and file the ‘green card’ application. Even though it still will not be processed
until her June 12, 2013 Priority Date becomes current under the ‘Priority Date
/ Final Action Date, she can nonetheless go ahead and file the application and get
Employment Authorization and Advance Parole for a family member(s) while they
continue to wait in line for her Priority Date to become current.
The U.S. Department of State also asserts that allowing
these foreign nationals to apply ahead of time will allow the State Department
to more accurately predict the future availability of immigrant visas that will
need to be processed. Based upon the
recent wild fluctuations in the Priority Dates for some of these categories in
the past year, this can only be a good thing.
So, at the end of the day, these foreign nationals will
still have to wait in line, as before – but at least they get to snack on some
fairly significant benefits while standing there.
Friday, November 21, 2014
Immigration by Executive Order
Last night, President Barack Obama announced a new Executive Order designed to address several (of many) immigration issues facing our country. The first understatement is to acknowledge that his use of an Executive Order has drawn considerable controversy.
First, let's address the Executive Order issue. President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach. I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue. Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill. Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint. Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out. In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.
The Executive Order addresses five different initiatives to address the immigration system. Three of these initiatives are concrete proposals that have real impact on certain immigration procedures. The other two statements are simply aspirational comments.
Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:
DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS
What it does: Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported'). And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.
Who is affected: Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.
What this changes: Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16. This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA').
Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.
The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident. It does not permit them an alternative opportunity to get Lawful Permanent Residency.
When it starts: It is anticipated that this benefit will become available before the end of May 2015.
DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')
What it does: Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.
Who is affected: Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 - may now apply for this benefit. Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.
What this changes: Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children. Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply. In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007. The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years. That period of work authorization will now be extended to three (3) years.
When it starts: It is anticipated that these extended benefits will become available before the end of February 2015.
PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE
What it does: Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.
Who is affected: Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.
What this changes: An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years. If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years. A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant. The 'Waiver' gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'. Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad.
Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment.
Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).
When it starts: Unknown; generally whenever new regulations are issued.
Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.
Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.
First, let's address the Executive Order issue. President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach. I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue. Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill. Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint. Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out. In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.
The Executive Order addresses five different initiatives to address the immigration system. Three of these initiatives are concrete proposals that have real impact on certain immigration procedures. The other two statements are simply aspirational comments.
Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:
DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS
What it does: Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported'). And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.
Who is affected: Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.
What this changes: Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16. This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA').
Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.
The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident. It does not permit them an alternative opportunity to get Lawful Permanent Residency.
When it starts: It is anticipated that this benefit will become available before the end of May 2015.
DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')
What it does: Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.
Who is affected: Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 - may now apply for this benefit. Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.
What this changes: Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children. Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply. In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007. The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years. That period of work authorization will now be extended to three (3) years.
When it starts: It is anticipated that these extended benefits will become available before the end of February 2015.
PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE
What it does: Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.
Who is affected: Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.
What this changes: An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years. If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years. A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant. The 'Waiver' gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'. Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad.
Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment.
Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).
When it starts: Unknown; generally whenever new regulations are issued.
Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.
Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.
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