UNITED STATES – U.S. Department of State Issues June 2010 Visa Bulletin

The U.S. Department of State has issued the June 2010 Visa Bulletin.  The news is mixed with some categories continuing to move in the direction of less retrogression, some categories remaining stagnant, and other categories actually backsliding.  Furthermore, any progress in immigrant visa availability is tempered by very modest gains.

Perhaps the most interesting news for the June 2010 Visa Bulletin is the addition of the Dominican Republic category.  While all countries receive a specific number of annual immigrant visas, only those countries exceeding their annual allotment, and thus becoming “oversubscribed,” are listed separately from the “All Chargeability Areas Except Those Listed” countries.  This signifies greater demand from the Dominican Republic.

The first preference category (EB-1) remains current for all countries.

The second preference category (EB-2) remains current for all countries, except for India and China.  For the fourth month in a row, EB-2 India did not move at all.  It stayed put at February 1, 2005.  This is troubling because no movement actually indicates greater retrogression.  To maintain steady retrogression levels, each category would need to move forward thirty days from one month to the next.  So when a category moves forward less than thirty days, this actually signifies an increase in immigrant visa retrogression.

EB-2 China moved forward by two months, from September 22, 2005 to November 22, 2005.  This movement is very similar to the movement we have seen over the past few months.  While the general direction of the movement is beneficial, it is certainly not significant.  Indeed, the movement has only been slightly better than month-to-month. 

The EB-3 category experienced similar modest gains.  For the “All Chargeability Areas Except Those Listed,” China, and the Philippines, retrogression was cut back by two months, from April 22, 2003 to June 22, 2003.  The Dominican Republic is also set at June 22, 2003.  Aside from EB-3 Mexico, which recently became “unavailable,” EB-3 India continues to be the most oversubscribed category, and moved only twenty-two days, from October 1, 2001 to October 22, 2001.

The April 2010 Visa Bulletin can be viewed at:  http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

UNITED STATES – Arizona Passes New Immigration Enforcement Provision

On Friday April 23, 2010, Arizona Governor Jan Brewer signed SB 1070 into law.  This law is focused on immigration enforcement and appears to give broad authority to state and local law enforcement agencies to enforce federal immigration provisions.  The bill, among other things, requires law enforcement officers and other agents of the state to inquire about a person’s immigration status under certain circumstances. 

The passage and signing of the new law has pushed Arizona to the forefront of the national debate on immigration issues.  This is a controversial bill and has generated significant media coverage and spurred numerous debates, protests, and demonstrations.  The law will likely be the subject of multiple lawsuits addressing both questions of immigration law and various Constitutional issues.  This law will go into effect 90 days from the date it was signed by the governor.

We are carefully monitoring this situation and will be providing updates on specific actions and precautions that clients should consider taking in the coming weeks and months.

UNITED STATES – Immigration Reform on Congressional Agenda

Now that healthcare reform has been passed, Congress has turned its attention to immigration reform.  However, some in Washington, D.C. have indicated that the issue might have a very difficult time finding enough votes to pass.

The immigration reform push has been strong with Senate Majority Leader Harry Reid, who faces a challenging re-election contest in Nevada.

Although a bill has not yet been formally proposed, it would likely contain provisions similar to those included in the 2007 comprehensive immigration reform effort.  In the 2007 proposals, there was a strong emphasis on enforcement, as well as additional immigration benefits for the employment-based process.

The Obama administration has expressed a desire to create a system to allow those without valid documentation to come forward and earn an opportunity to become a U.S. citizen.  Such individuals would likely have to pay a fine, as well as wait until visa numbers become available after those who are going through the process legally have received their opportunity.

President Obama has also indicated that he would target U.S. employers in enforcement efforts to reduce incentives to enter the country illegally.  The impetus is to remove the availability of jobs for those who wish to enter the United States without inspection.

To succeed, the Democrat-led Congress will need bipartisan support.  The 2007 comprehensive immigration reform bill did have bipartisan support.  It does not appear that there will be significant bipartisan support for this bill given early comments from previous immigration reform supporter John McCain, who has indicated that now is not the right time for the legislation. 

We will be providing regular updates on the issue of immigration reform.

CANADA – Special Visa Program for Mexican Business Visitors Created

Canada imposed visa restrictions on those travelling from Mexico to Canada last year. This policy angered Mexican authorities and damaged the relationship between the governments of the two U.S. neighbors.  The visa restrictions were imposed to reduce the number of refugees from Mexico applying for valid status in Canada.

A special visa program for business visitors from Mexico has been implemented.  The new Business Express Program was created to enable qualified businesses and their employees to benefit from more efficient visa processing.  Specifically, they will be encumbered less paperwork, will benefit from priority processing of visa applications, and will have a dedicated service team to respond to specific issues.  This new program will also allow Mexican business visitors to have their visa applications processed within twenty-four hours.

The program is designed to benefit individuals employed by companies in Mexico who have a documented need for regular business travel to Canada.  Participation in the program is by invitation only.  Companies with good immigration track records will be identified and invited by the Embassy of Canada to register for the program.  This means that companies wishing to participate should be sure they are in full compliance with Canadian immigration law in all aspects.  Namely, their employees must be admissible, their employees have previously travelled to Canada and adhered to Canada’s immigration laws, and they have a significant number of business visitors working with Canadian businesses.

So far, the embassy has invited 113 companies to enroll.  Qualified applicants can apply for visas at visa application centers in Mexico City, Monterrey and Guadalajara.

Canada has recognized that Mexico is one of its largest trading partners, and this program is intended to help Mexican and Canadian companies cooperate in renewing economic growth.

UNITED STATES – Automatic Cap-Gap Solution for F-1 Students

Last year, the U.S. Citizenship and Immigration Services (USCIS) introduced an interim rule that generates an automatic extension of status for certain F-1 students with approved H-1B petitions filed under the FY2010 H-1B cap.  This interim rule remains in force for the FY2011 H-1B cap this year.

A gap in status can occur between the time an employer files a petition for an F-1 student to change to H-1B status and the time the H-1B status becomes active on October 1st.  Specifically, in years where all H-1B numbers are exhausted, employers may not file an H-1B petition earlier than April 1st for the following fiscal year, which starts October 1st.  So, for example, if an F-1 student has approved optional practical training (OPT) work authorization that expires on July 1st, and her H-1B status cannot begin until October 1st, there would be a 3-month gap during which she could not work.  (And, incidentally, in this example she would be required to return to her home country until her H-1B status became active, at which time she would need to apply for an H-1B visa stamp at a U.S. consular post before she could re-enter the United States in H-1B status.) 

Once a timely H-1B petition has been filed, the automatic cap-gap extension will be invoked and will continue until the petition is approved.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30th.  If the petition is ultimately denied, withdrawn or revoked, the cap-gap protection is removed.  In that case, the student would have the standard 60-day grace period from the date their OPT ends to depart the United States. 

An F-1 student benefiting from cap-gap provisions will need to get an updated Form I-20 from his designated school official (DSO).  Indeed, a new I-20 will be the only document a student will have to demonstrate continuing OPT work authorization. In some cases, the student’s DSO may need to update the student’s SEVIS record to have the cap-gap extension properly applied.

F-1 students should not depart the United States during cap-gap periods.  The reason for this is that, technically, the EAD card of an F-1 student on OPT will have expired under a cap-gap situation.  Therefore, if the student departs the United States during the cap-gap extension period, she will not be able to return in F-1 status.  Instead, she would have to apply for an H-1B visa at a U.S. consular post abroad and plan to re-enter the United States after her H-1B becomes active on October 1st.

TAIWAN – Former Director for the American Institute in Taiwan Supports ECFA

Former American Institute in Taiwan Director Douglas H. Paal believes the Economic Cooperation Framework Agreement (ECFA) will have a significant economic impact throughout the world.  He believes it will demonstrate that closer economic ties with the People’s Republic of China are good for Taiwan and its financial future.

The ECFA is a proposed agreement between the governments of Taiwan and mainland China that would enable Taiwan to generate economic integration China.  The agreement is still under negotiation and stands to be finalized sometime in June of this year.

Taiwan’s political status currently prevents it from signing free trade agreements with other countries.  The ECFA would change that.  However, it is not without controversy in Taiwan.  Some see it as part of a larger plan to unify Taiwan with the People’s Republic of China.  There is also a concern that it will allow easier access for professional Chinese workers to take desired positions in Taiwan, potentially displacing Taiwanese professionals.

Proponents see the ECFA as a landmark agreement that offers Taiwan the opportunity to increase its economic influence and cross new frontiers. Specifically, Taiwanese companies may experience new opportunities in the technology, services and manufacturing industries.  The ECFA is designed to level the playing field with neighboring competitor countries.  This is especially critical for Taiwan as mainland China continues to push forward as an economic superpower.

CANADA – Canada Plans to Launch E-passports Program

Canada is set to introduce a biometric passport system patterned after U.K.-style e-passports. Starting as early as 2011, Canadian citizens will begin receiving passports embedded with chips that contain digital images and personal information, including the individual’s name, gender, date of birth, and place of birth. 

Over 60 countries have e-passports, and Canada is the only member of the G7 that had not yet implemented them.  Some experts have expressed concern over the adequate protection of the holder’s privacy.  These concerns may have arisen due to recent research by British scientists who have uncovered weaknesses in electronic passports issued by the United States, United Kingdom, and approximately 50 other countries.  The research indicates movements of individuals as they enter or exit buildings are traceable by those with adequate technology.  Indeed, remote tracking of a given e-passport in real time is possible, and due to the e-passport’s radio-frequency identification, data in the passports cannot be turned off.  This makes the threat persistent unless the passport is shielded in a special identity document pouch that interrupts its radio transmissions.

A biometric passport, also known as an e-passport, uses biometrics to authenticate the identity of its holder. It uses smart card technology, including a microprocessor chip embedded in the cover or center page of the passport.  The passport’s information is printed on the data page of the passport and stored in the microprocessor chip.  Public Key Infrastructure (PKI) is used to authenticate the data stored in the chip, making it virtually impossible to tamper with or fraudulently replicate.

AUSTRALIA – Alternative Australian Visa Options in Light of Reduced Skills List

Recent changes to Australia’s Skilled Occupation List mean that fewer people qualify for visa status in Australia as skilled independent visa holders. Furthermore, the Migration Occupations in Demand List no longer exists. These changes make Australian immigration more difficult.

One alternative is sponsorship by an Australian State or Territory, under which relatives may sponsor as dependents.  The second option is the provisional 475 visa, which may be an alternative to the Skilled Occupation List.  A detailed description of the requirements for each of these visas is listed below:

State or Territory Sponsorship

Under the State or Territory Sponsorship visa, the individual must meet the following requirements:

  • Under 45 years of age;
  • Be employed in an occupation listed on the Skilled Occupation List;
  • Be employed in an occupation listed on the individual State Skills in Demand list;
  • Have experience in the occupation;
  • Have good English language skills;
  • Be sponsored by a State or Territory;
  • Attain a score of 100 points; and
  • Live in the sponsoring State or Territory for the first two years.

Those qualifying under this visa category are also able to sponsor certain relatives for permanent resident visas.

State Sponsorship – Provisional Visa 475

This option could be considered if the individual’s occupation is not on the Skills in Demand list.  The requirements are similar:

  • Under 45 years of age;
  • Be employed in an occupation listed on the Skilled Occupation List;
  • Be employed in an occupation listed on the State regional skilled occupations list;
  • Have experience in the occupation;
  • Have good English language skills;
  • Be sponsored by the regional area;
  • Attain a score of 100 points; and
  • Live in the regional area for the first two years.

This is not a permanent visa, so applicants cannot sponsor relatives for entry to Australia.  Sponsorship for relatives can be done after the two-year residency requirement is met and the individual applies for permanent residency.

Applicants under this visa type should review the regional skilled occupation lists specific states in which they wish to reside for at least two years.

UNITED STATES – USCIS Updates Case Processing Times

The four U.S. Citizenship and Immigration Services (USCIS) regional offices have issued updated processing times.  The general trend seems to be slightly faster processing times for most employment-based case types.  As the economy has struggled, fewer petitions have been filed.  This has enabled USCIS to move cases faster through the process to final adjudication.  As the economy begins to improve and the volume of employment-based sponsorship increases, USCIS will need to maintain proper staffing levels to avoid having processing times backslide.

California Service Center

From an employment-based immigration perspective, the California Service Center (CSC) primarily processes non-immigrant petitions.  CSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

The processing time for most I-129s is 2 months.  This includes petitions for initial H-1B status, H-1B extensions, TN status, O-1 status, and H-3 status.  Petitions for L-1 individuals, H-2As, and H-2Bs are down to 1 month.

Interestingly, most applications for dependent spouses and children are at 2.5 months.  Applications for employment authorization for L-2 dependent spouses currently have a processing time of 3 months.

Vermont Service Center

Under the bi-specialization initiative, the Vermont Service Center (VSC) is the other regional processing center that focuses on petitions for non-immigrant employment-based immigration benefits.  VSC processes cases filed for individuals whose worksites are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

For employment-based cases, VSC’s processing times mirror CSC’s processing times.  Most I-129 petitions have a processing time of 2 months, with the exception of L-1 individuals, H-2As, and H-2Bs.  Again, applications for dependents are at 2.5 months, and applications for L-2 dependent spouse work authorization are 3 months.

Nebraska Service Center

For employment-based immigration cases, the Nebraska Service Center (NSC) processes I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  NSC processes cases filed for individuals whose worksites are in one of the following states: AK, AZ, CA, CO, GU, HI, ID, IL, IN, IA, KS, MI, MN, MO, MT, NE, NV, ND, OH, OR, SD, UT, WA, WI, and WY.

I-140 petitions now have a processing time of 4 months.  This includes petitions sponsoring Outstanding Researchers or Professors, or those with Extraordinary Ability.  I-485 applications for adjustment of status are down to less than 10 months. 

The processing times of applications for EAD work authorization and advance parole (AP) travel authorization remains at a troubling 3 months.  The concern here is for those who filed I-485 applications in the summer of 2007 when all priority dates became current, and whose priority dates then retrogressed.  Applications to extend EAD and AP can only be filed 4 months in advance.  With a processing time of 3 months, any delay in filing could result in a gap of work and travel authorization.

Texas Service Center

Under the bi-specialization initiative, the Texas Service Center (TSC) is the other regional processing center that focuses on I-140 petitions for immigrant workers and I-485 green card applications, as well as derivative work and travel authorization benefits (EAD work document and advance parole travel authorization).  TSC processes cases filed for individuals whose worksites/residences are in one of the following states: AL, AR, CT, DE, DC, FL, GA, KY, LA, ME, MD, MA, MS, NH, NJ, NM, NY, NC, OK, PA, PR, RI, SC, TN, TX, VT, VA, VI, and WV.

The processing times at TSC are the same as those listed above for NSC, except that I-485 applications for adjustment of status are taking just over 6 months.  This is a surprisingly fast processing time for this type of case.  Several months ago, many I-485 applications for adjustment of status were taking close to a year.  Please note that the processing time for an I-485 only applies to applicants whose priority dates are current.

To view the processing time of other case types not discussed here, please visit: https://egov.uscis.gov/cris/processTimesDisplay.do;jsessionid=cab8BH8TCZBdC_JKj6Ils.  Select the desired regional processing center in the pull-down menu at the bottom of the page.

UNITED KINGDOM – U.K. Visa Fees Rise

The United Kingdom has announced that all U.K. visa applications will be subject to higher visa fees, although some are only rising slightly while others are rising significantly.  These new fee rates took effect on April 6th:
· Tier 1 visas for investors/entrepreneurs increased £15 to £690.
· Tier 2 visas for skilled workers increased by £5 to £270.
· 5-year multiple entry visas went up £20 to £420.
· 10-year visas increased £110 to £610.
· Tier 4 student visas increased £54 to £199.
The group that was impacted the most by the new fee structure is those with dependent relatives.  Settlement Visas for dependent relatives jumped from £585 to £1680, an increase of nearly 300 percent. An application for indefinite leave to remain for a dependent relative in the U.K. will rise to £1,930.  An additional 10 percent will now also be charged for dependent children.
The United States took similar action in 2007 with large fee increases. This sparked widespread criticism by immigrant advocates, who argued that steep hikes could impact some immigrants more than others, perhaps resulting in some applicants not being able to afford citizenship and other immigration benefits. In fact, immigration applications did drop off noticeably. U.K applications could face similar sharp declines, especially in light of the shaky economy.

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