U.S. Citizenship and Immigration Services seeks public comment on proposal to adjust fees for immigration benefits. Dallas-based immigration attorney Stewart Rabinowitz weighs in on what he regards as the opposite of “value-added.”
U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed federal rule that would adjust fees for immigration benefit applications and petitions. The proposal, posted to the Federal Register on June 9, 2010, for public viewing, would increase overall fees by a weighted average of about 10 percent but would not increase the fee for the naturalization application.
USCIS is a fee-based organization with about 90 percent of its budget coming from fees paid by applicants and petitioners to obtain immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine whether it is recovering its costs to administer the nation’s immigration laws, process applications, and provide the infrastructure needed to support these activities. This proposed rule results from a comprehensive fee review begun in 2009.
“We are mindful of the effect of a fee increase on the communities we serve and have worked hard to minimize the size of the proposed increase through budget cuts and other measures,” said USCIS Director Alejandro Mayorkas. “Requesting and obtaining U.S. citizenship deserves special consideration given the unique nature of this benefit to the individual applicant, the significant public benefit to the nation, and the nation’s proud tradition of welcoming new citizens. Recognizing the unique importance of naturalization, we propose that the naturalization application fee not be increased.”
But Dallas-based immigration attorney Stewart Rabinowitz does not concur with Mayorkas, or with the underlying premise of fee increases for services not well rendered.
“Most people associate a fee increase with an improvement in service, not a greater expense for worse service,” countered Rabinowitz, “Yet today, the USCIS’s culture of saying ‘no’ in its decision-making thrives. USCIS has even developed new reasons to say ‘no’ adding an element of uncertainty to case adjudications which previously were straightforward. It recently issued the Neufeld H-1B memo which skirts the regulatory process and is of questionable authority as a basis for denying IT staffing H-1B petitions. It has made it nearly impossible gaining an approved L-1B petition by applying standards which are much higher than those set forth in USCIS’s own regulations. Even fixing simple USCIS errors on the face of an approval notice remains an exercise in frustration.”
On June 8, 2010, an application for preliminary injunction and complaint was filed in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010 Neufeld Memorandum‘s definition of employer-employee relationships. Stewart Rabinowitz, a Dallas-based immigration attorney, offers some pertinent insights.
On June 8, 2010, a group of IT staffing companies, whose H-1B petitions USCIS had denied, filed suit against USCIS in the U.S. District Court for the District of Columbia. The lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, challenges the controversial Neufeld Memorandum of January 8, 2010, which allegedly clarifies employer-employee relationships within H-1B visa petition adjudications, but in practice has resulted in a preponderance of H-1B denials.
Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved for a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010 memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.
Plaintiffs in the suit allege that the Neufeld Memorandum was at odds with the plain language of the statute and its implementing regulations. The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employees because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.
Stewart Rabinowitz, a Dallas-based immigration attorney, concurs. “Broadgate appropriately challenges USCIS agency action on many grounds. Its Complaint alleges a violation of the Administrative Procedures Act (APA) by substituting a USCIS-issued memo by a person not authorized to issue a rule, instead of following the statutorily mandated notice and comment requirements of the APA.”
Visa Bulletin for July 2010
Number 22
Volume IX
Washington, D.C.
A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by June 9th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.
Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.
5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family All Chargeability Areas Except Those Listed CHINA-mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st 01APR05 01APR05 01APR05 01APR05 01NOV92 01SEP95
2A 01JUL08 01JUL08 01JUN07 01JUL08 01JUN07 01JUL08
2B 01MAY03 01MAY03 01MAY03 01MAY03 15JUN92 01MAR00
3rd 01SEP01 01SEP01 01SEP01 01SEP01 01MAR92 01MAY93
4th 01JAN01 01JAN01 01JAN01 01JAN01 01MAR95 01APR89
*NOTE: For July, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUN07. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT the DOMINICAN REPUBLIC and MEXICO with priority dates beginning 01JUN07 and earlier than 01JUL08. (All 2A numbers provided for the DOMINICAN REPUBLIC AND MEXICO are exempt from the per-country limit; there are no 2A numbers for the DOMINICAN REPUBLIC AND MEXICO subject to per-country limit.)
Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 22NOV05 C 01OCT05 C C
3rd 15AUG03 15AUG03 15AUG03 22NOV01 U 15AUG03
Other Workers 01JUN01 01JUN01 01JUN01 01JUN01 U 01JUN01
4th C C C C C C
Certain Religious Workers C C C C C C
5th C C C C C C
Targeted Employ-ment Areas/ Regional Centers C C C C C C
5th Pilot Programs C C C C C C
The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.
Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For July, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 54,100 Except:
Egypt: 24,500
Ethiopia: 25,100
Nigeria: 18,850
ASIA 23,500
EUROPE 32,000
NORTH AMERICA (BAHAMAS) 5
OCEANIA 1,300
SOUTH AMERICA, and the CARIBBEAN 1,500
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010 principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN AUGUST
For August, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 64,300 Except:
Egypt: 26,000
Ethiopia: 25,625
Nigeria: 22,000
ASIA 28,700
EUROPE CURRENT
NORTH AMERICA (BAHAMAS) 5
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT
D. VISA AVAILABILITY IN THE FAMILY-SPONSORED CATEGORIES
There continues to be extremely rapid forward movement of most Family preference cut-off dates. This is a direct result of the lack of demand by potential applicants who have chosen not to pursue final action on their cases, or who may no longer be eligible for status. The rapid movement provides the best opportunity to maximize number use under the FY-2010 annual numerical limitations. Should applicants eventually decide to pursue action on their cases it will have a significant impact on the cut-off dates.
E. RETROGRESSION OF THE MEXICO FAMILY THIRD AND FOURTH PREFERENCE CUT-OFF DATES
As the end of the fiscal year approaches, it has been necessary to retrogress the Mexico Family Third and Fourth preference cut-off dates to keep visa issuances within the annual numerical limitations set by law. It is anticipated that for October, the first month of the new fiscal year, these preferences will return to the latest cut-off dates reached during FY-2010.
F. VISA AVAILABILITY IN THE EMPLOYMENT-BASED CATEGORIES
Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:
Employment First: Current
Employment Second:
China and India: March or April 2006
Employment Third:
Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Mexico: Unavailable
Philippines: June through September 2004
Employment Fourth:
Worldwide: It may be necessary to establish a cut-off date for September.
Employment Fifth: Current
Please be advised that the above date ranges are only estimates which are subject to fluctuations in demand. Continued heavy demand during recent months has reduced the estimated forward movements projected earlier in the year. It is possible that some annual limits could be reached or that some preferences could retrogress prior to the end of the fiscal year. Those categories with a “Current” projection will remain so for the foreseeable future.
G. DIVERSITY VISA LOTTERY 2011 (DV-2011) RESULTS
The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2011 diversity lottery. The diversity lottery was conducted under the terms of section 203(c) of the Immigration and Nationality Act and makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Approximately 100,600 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger figure should insure that all DV-2011 numbers will be used during fiscal year 2011 (October 1, 2010 until September 30, 2011).
Applicants registered for the DV-2011 program were selected at random from over 12.1 million qualified entries (16.5 million with derivatives) received during the 60-day application period that ran from noon on October 2, 2009, until noon, November 30, 2009. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete the information requested.
Registrants living legally in the United States who wish to apply for adjustment of their status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the total *50,000 visa numbers have been used, the program for fiscal year 2011 will end. Selected applicants who do not receive visas by September 30, 2011 will derive no further benefit from their DV-2011 registration. Similarly, spouses and children accompanying or following to join DV-2011 principal applicants are only entitled to derivative diversity visa status until September 30, 2011.
Only participants in the DV-2011 program who were selected for further processing have been notified. Those who have not received notification were not selected. They may try for the upcoming DV-2012 lottery if they wish. The dates for the registration period for the DV-2012 lottery program will be widely publicized during August 2010.
* The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulated that up to 5,000 of the 55,000 annually-allocated diversity visas be made available for use under the NACARA program. The reduction of the limit of available visas to 50,000 began with DV-2000.
The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2011 program:
AFRICA
ALGERIA 1,753
ANGOLA 55
BENIN 508
BOTSWANA 13
BURKINA FASO 183
BURUNDI 72
CAMEROON 3,674
CAPE VERDE 26
CENTRAL AFRICAN REP. 18
CHAD 59
COMOROS 7
CONGO 144
CONGO, DEMOCRATIC
REPUBLIC OF THE 2,575
COTE D’IVOIRE 759
DJIBOUTI 45
EGYPT 4,251
EQUATORIAL GUINEA 13
ERITREA 851 ETHIOPIA 5,200
GABON 41
GAMBIA, THE 72
GHANA 6,002
GUINEA 701
GUINEA-BISSAU 5
KENYA 4,689
LESOTHO 11
LIBERIA 1,826
LIBYA 114
MADAGASCAR 55
MALAWI 33
MALI 88
MAURITANIA 25
MAURITIUS 61
MOROCCO 2,003
MOZAMBIQUE 2
NAMIBIA 13
NIGER 89 NIGERIA 6,000
RWANDA 204
SAO TOME AND PRINCIPE 0
SENEGAL 427
SEYCHELLES 4
SIERRA LEONE 3,911
SOMALIA 201
SOUTH AFRICA 963
SUDAN 1,156
SWAZILAND 4
TANZANIA 174
TOGO 1,011
TUNISIA 132
UGANDA 490
WESTERN SAHARA 0
ZAMBIA 128
ZIMBABWE 163
ASIA
AFGHANISTAN 97
BAHRAIN 15
BANGLADESH 5,999
BHUTAN 5
BRUNEI 5
BURMA 367
CAMBODIA 434
HONG KONG SPECIAL
ADMIN. REGION 43
INDONESIA 205
IRAN 2,819 IRAQ 147
ISRAEL 129
JAPAN 298
JORDAN 136
NORTH KOREA 2
KUWAIT 88
LAOS 3
LEBANON 214
MALAYSIA 133
MALDIVES 4
MONGOLIA 279 NEPAL 2,189
OMAN 3
QATAR 9
SAUDI ARABIA 91
SINGAPORE 35
SRI LANKA 515
SYRIA 132
TAIWAN 365
THAILAND 77
TIMOR-LESTE 0
UNITED ARAB EMIRATES 66
YEMEN 95
Surveillance systems deployed to northern border provide situational awareness.
U.S. Customs and Border Protection recently announced the use of the
Remote Video Surveillance System (RVSS) in the Detroit Border Patrol Sector as part of the Secure Border Initiative’s Northern Border Project. The Northern Border Project is part of CBP’s program to use technology as part of its efforts to secure the northern border against illegal border crossers. The project also deployed the surveillance system in the Buffalo Border Patrol Sector in February 2010.
“The Northern Border Project technology deployment provides immediate capability to help Border Patrol agents expand their ability to detect, identify, classify, respond to and resolve illegal cross border activity,” said Secure Border Initiative Executive Director Mark Borkowski. “At the same time, this deployment will provide lessons learned that will enable CBP to design better-tailored, longer-term technology options for the northern border.”
Each RVSS system has a total of four cameras – two day and two night cameras for round-the-clock operations. The Detroit sector deployment has 11 RVSS sites along the St. Clair River, ten of which are completed and operational with the eleventh scheduled for completion by year’s end. The Buffalo sector deployment has 5 RVSS sites along the upper Niagara River all of which are completed and operational.
The use of technology along the northern border is part of a larger border security strategy to assist CBP officers and agents. SBInet is the portion of SBI charged with developing and installing technology solutions to help gain effective control of our borders. The goal is the right mix of technology and personnel for each border sector based on the operational needs of Border Patrol agents.
CBP chose the Detroit and Buffalo sectors for this latest RVSS deployment based on the needs of the Border Patrol and the unique operational area, which consists of coastal maritime, river, urban and rural environments.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
On June 7, 2010, Secretary Napolitano announced a major aviation security milestone.
Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced that all passengers traveling in the United States and its territories are now being checked against terrorist watchlists through the Transportation Security Administration’s (TSA) Secure Flight program—a major step in fulfilling a key 9/11 Commission recommendation.
Before Secure Flight, each airline conducted its own passenger watchlist screening.
“Secure Flight fulfills a key recommendation of the 9/11 Commission Report, enabling TSA to screen passengers directly against government watchlists using passenger name, date of birth, and gender before a boarding pass is issued,” said Secretary Napolitano. “This program is one of our many layers of security—coordinated with our partners in the airline industry and governments around the world—that we leverage to protect the traveling public against threats of terrorism.”
Under the DHS program, TSA checks each passenger’s name, date of birth and gender against government watchlists for domestic and international flights. In addition to facilitating secure travel for all passengers, the program is designed to prevent the misidentification of passengers who have names similar to individuals on government watchlists. Misidentification has led to a significant number of such cases, a few of them well-publicized.
“We are quite pleased to see the positive outcome from the collaborative work that ATA, its member airlines and TSA have invested in the development of the Secure Flight program,” said Air Transport Association (ATA) President and CEO James C. May. “We are especially pleased that TSA phased program implementation to ensure that commercial airline travelers experience a seamless transition.”
Ninety-nine percent of passengers clear Secure Flight enabling them to print boarding passes at home by providing their date of birth, gender and name as it appears on the government ID they plan to use when traveling at the time of booking their airline tickets. Persons who match watchlist parameters are subject to secondary screening, a law enforcement interview or prohibition from boarding an aircraft, as the facts merit.
The TSA began implementing Secure Flight in late 2009 and expects all international carriers with direct flights to the U.S. to begin using Secure Flight by the end of 2010.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
