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May 19‚ 2011
Immigration News Updates:
Recently Enacted or Proposed Immigration Policies
Update on H-1B
Visa Count
As of May 6, 2011, U.S. Citizenship and Immigration Services
(USCIS) had received 10,200 cap-eligible H-1B petitions against the Fiscal
Year 2012 65,000 cap amount. As of this date, USCIS had also received 7,300
cap-subject petitions against the 20,000 U.S. Master’s cap allocation. (At
this same time last year, 19,600 cap-eligible H-1B petitions had been
filed, along with 8,200 petitions for the U.S. Master’s cap. The annual
quota for Fiscal Year 2011, just completed, was reached at the end of
January 2011.)
We will continue to keep you updated regarding the H-1B usage
numbers so that you can plan accordingly. As soon as you identify a
candidate whom you wish to sponsor for an H-1B visa, please contact your
regular Mintz Levin contact to initiate the process.
TPS Extended
for Haitian Nationals
On May 17, 2011, Secretary of Homeland Security Janet
Napolitano announced the extension of Temporary Protected Status (TPS) for
Haitian nationals. The extension will take effect July 23, 2011, and will
allow these TPS beneficiaries to remain in the United States through
January 22, 2013. Currently, approximately 48,000 Haitian nationals with
TPS reside in the United States, following the devastating earthquake in
Haiti in January 2010. Furthermore, and very importantly, Secretary
Napolitano is re-designating Haiti for TPS. This means that eligible
Haitian nationals who have continuously resided in the United States since
January 12, 2011 will also be able to obtain TPS through January 22, 2013.
Under the original designation, TPS applicants needed to show
that they had continuously resided in the United States since January 12,
2010, but the re-designation now permits eligible individuals who arrived
up to one year after the earthquake to receive the protection of TPS. This
re-designation does not benefit Haitians who are not currently in
the United States—it only benefits those Haitians who have continuously
resided in the United States since January 12, 2011. USCIS has advised that
potential beneficiaries of this new law should not immediately apply but
wait for further instructions forthcoming soon.
State
Department Voids Announced Results of 2012 Diversity Lottery Program
The U.S. State Department has announced that due to a
computer programming error, it has voided the results of the 2012 Diversity
Lottery that were posted on the agency’s website. There is a 30-day period
during which applicants may register for the program, and the randomly
selected “winners” are supposed to be selected from applications submitted
throughout the 30-day period. However, a computer programming error caused
the State Department to improperly select 90% of the “winning” applicants
from registrants who had registered with the State Department during the
first two days of the 30-day registration period. Since the “winners” did
not represent a fair sample of the registrants, the State Department is
going to conduct a new random selection based on the original entries.
Anyone who submitted a qualified entry between October 5,
2010 and November 3, 2010 will be in the pool for the random selection, and
does not need to re-apply. New entries will not be accepted. Needless to
say, there are many disappointed would-be “winners,” but applicants for the
Diversity Lottery must remember that being selected as a “winner” of the
visa lottery is no guarantee of approval of future permanent residence
status. The State Department always selects far more “winners” than there
are immigrant visa numbers to distribute, and only “winners” with low
winning numbers have a chance of truly “winning” a green card.
Significant
Advancement for the Employment-Based Second Preference (EB-2) Categories
for China and India in June
Under U.S. immigration law, employment based (EB) immigrant (green
card) visas are divided among various preference categories. The first
preference category is reserved for applicants who are either (a) persons
of extraordinary ability in their field; or (b) outstanding researchers or
professors; or (c) multinational managers or executives. This category is
rarely backlogged because it is the hardest category to meet. The second
preference (EB-2) category is for persons filling positions that require
either an advanced degree or a bachelor’s degree and at least five years of
experience. The third preference category (EB-3) is for persons filling
positions that require less than a bachelor’s degree and five years of
experience but more than two of years of work experience.
Because of the limit on the numbers of immigrant visas that
may be issued by the U.S. government each fiscal year, and the fact that
the yearly allocations are divided among geographic regions of the world,
it is frequently the case that the EB-2 and EB-3 immigrant visa categories
are severely backlogged for persons born in China and in India, due to
heavy demand for immigrant visas by persons born in those countries.
There was a notable exception to this backlogged state of
affairs during the summer of 2007 when both the EB-2 and EB-3 categories
suddenly became “current,” allowing hundreds of thousands of people to
submit their permanent residence applications at the same time. Each green
card applicant has a “priority date” that is established by the filing of
the first step in the green card process for him or her. One’s “priority
date” must be current in the relevant immigrant visa category, in order to
file the last step of the green card process. Shortly after the priority
dates became current during the summer of 2007, the categories reverted back
to their backlogged state.
There is an enormous group of people in this country with
pending permanent residence applications, which were filed in the summer of
2007 when the priority dates became current. Because the priority dates
quickly became backlogged again, these applications have not been approved
by USCIS; they can only be approved when the applicant’s priority date
becomes current again.
It is significant, therefore, that in June 2011, EB-2 China
will advance two and one-half months to October 15, 2006, and EB-2 India
will advance three and one-half months, also to October 15, 2006. Indeed,
this month in May 2011, the EB-2 category for China is backlogged to August
1, 2006, and the EB-2 category for India is backlogged to July 1, 2006.
With the China and India EB-2 priority date advancement, it
is important to identify derivative beneficiaries who were not able to file
their own I-485 applications with the primary beneficiary. This could
involve a significant number of individuals, since many primary
beneficiaries were able to file their I-140/I-485 applications when all the
employment-based preference categories became current in the summer of 2007
and then became backlogged.
Eligible derivative beneficiaries include spouses and
unmarried children younger than 21 years. This could include spouses and
children who were traveling outside the United States when the visa numbers
opened up in the summer of 2007 or individuals who were subsequently
married to the primary beneficiary or children who were subsequently born
to the primary beneficiary. They would now be eligible to file their own
I-485 applications in June if the primary beneficiary’s priority date is
prior to October 15, 2006.
It is extremely important for derivative beneficiaries who
are in the United States in H-4 or L-2 status to be prepared to file their
I-485 applications in June, since their status is dependent on the primary
beneficiary maintaining his or her H-1B or L-1 status. As soon as the
primary beneficiary’s I-485 application is approved and he/she becomes a
U.S. permanent resident, the derivative beneficiaries are no longer
entitled to H-4 or L-2 status. Typically, the USCIS Nebraska Service Center
or Texas Service Center will adjudicate the principal applicant’s I-485
permanent residence application as soon as the priority date becomes
current again.
Accordingly, please contact us immediately if your employees
have any dependents (spouse or children younger than 21) who will be
entitled to file I-485 permanent residence applications in June.
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