The State Department has announced the unavailability of EB-2 visa numbers for the balance of fiscal year 2012 for applicants from the People’s Republic of China (PRC), and from India. The prior EB-2 cut off date had been August 15, 2007 for applicants from each of those 2 countries.
Visa unavailability represents a complete exhaustion of visa numbers for the affected countries in the EB-2 category for the current fiscal year. According to the Department of State, there has been high demand for numbers by applicants with priority dates earlier than the August 15, 2007. The Department explained that the demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (“USCIS”) for adjustment of status in the EB-3 category, and are now eligible to be upgraded to EB-2 status. It opined that the potential amount of “upgrade” demand is not currently being reported. Many applicants worldwide in the EB-3 category desire to alleviate their frustration with visa availability delays. Current EB-3 visa wait times can exceed a decade and by obtaining a new labor certification and an approved EB-2 visa petition based on a job offer that requires a masters degree or its equivalent, the applicant can reduce his or her wait by several years.
According to the Department, it was evident that the continued availability of EB-2 numbers for countries other than PRC and India was being jeopardized for the balance of fiscal year 2012 by such high demand, and Department took the necessary step of making the EB-2 numbers for PRC and India “Unavailable” in early April, 2012 for the remainder of FY-2012.
With the start of fiscal year 2013 in October, 2012, EB-2 visa numbers will again be available for PRC and India within the new fiscal year’s annual numerical limitations. The Department reports that it will try to return EB-2 availability for PRC and India to a cut-off date of May 1, 2010, a date which had been reached in April, 2012.
The Department also reports that based on the current rate of demand, it may be need establish an EB-2 cut-off date for all countries other than PRC and India.
Finally, as a measure of the strength of demand in the EB-1 Priority Worker category, the Department advises that in the next few months, EB-1s, presently current worldwide, may also face a cut-off date to limit use within the annual, statutory EB-1 visa allotment.
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
BREAKING NEWS: In its decision on June 25, 2012, the U.S. Supreme Court held as pre-empted by federal law all of the challenged provisions of Arizona’s strict immigration statute known as S.B. 1070, but one: it let stand a key provision permitting police who conduct a stop or arrest to take steps to verify a person’s immigration status before releasing the person. Held as preempted were S.B. 1070 provisions that (1) make a state misdemeanor for failing to comply with federal alien registration requirements; (2) make a state misdemeanor for an unauthorized alien to seek or engage in work; and (3) authorize state and local officers to arrest a person without a warrant whom the officer has probable cause to believe has committed a public offense which makes the person removable from the U.S.
In an unprecedented move, on June 15, 2012, President Obama announced that his Administration would grant Deferred Action status to qualifying children of the undocumented to permit them to remain in the U.S. for 2 years, employment eligible. The action has drawn praise from the Hispanic community and criticism from Republicans who favor Congressional action to address this issue over a short term Executive action. The action may benefit upwards of 600,000 persons presently in the U.S.
In announcing the Directive, Homeland Security Secretary Napolitano described Deferred Action status for this group of low risk beneficiaries as a logical extension of the Administration’s prosecutorial discretion policy to best use federal resources to remove those who pose the most serious national security risk or risk to public safety. She characterized this eligible population as having been brought to the U.S. through no fault of their own and who lacked intent to violate the law.
To qualify for Deferred Action status, an applicant must (1) Have come to the U.S. before age 16; (2) Have resided in the U.S. for at least 5 years prior to June 15, 2012; (3) Either current be enrolled in school, or graduated from high school, have a G.E.D. certificate or be honorably discharged from the U.S. Armed Forces; (4) Not be convicted of a felony, a significant misdemeanor, or multiple misdemeanors, or otherwise be a threat to national security or public safety; and (4) Be 30 or younger.
Persons meeting the above criteria and who are already in removal proceedings will be subject to a case-by-case review.
The Administration expects to implement this Deferred Action program within the next 60 days.
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, in chronological order of reported priority dates, for demand received by June 8th. If not all demand could be satisfied, 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. If 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 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. 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, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First: (F1) Unmarried Sons and Daughters of U.S. 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, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
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-Sponsored
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
F1
08JUL05
08JUL05
08JUL05
08JUN93
15JUL97
F2A
15FEB10
15FEB10
15FEB10
01FEB10
15FEB10
F2B
01MAY04
01MAY04
01MAY04
01JAN92
22DEC01
F3
15APR02
15APR02
15APR02
22JAN93
22JUL92
F4
22JAN01
08JAN01
22JAN01
08JUN96
01FEB89
*NOTE: For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01FEB10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01FEB10 and earlier than 15FEB10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
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 Pub. L. 102-395.
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.)
Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
01JAN09
U
U
01JAN09
01JAN09
3rd
22JUL06
22SEP05
22SEP02
22JUL06
08JUN06
Other Workers
22JUL06
15JUN03
22SEP02
22JUL06
08JUN06
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C
C
C
C
C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, 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.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B. DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA 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 resulted in reduction of the DV-2012 annual limit 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-2012 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
CURRENT
ASIA
CURRENT
EUROPE
CURRENT
Except: Uzbekistan 17,700
NORTH AMERICA (BAHAMAS)
CURRENT
OCEANIA
CURRENT
SOUTH AMERICA, and the CARIBBEAN
CURRENT
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-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 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-2012 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
CURRENT
ASIA
CURRENT
EUROPE
CURRENT
NORTH AMERICA (BAHAMAS)
CURRENT
OCEANIA
CURRENT
SOUTH AMERICA, and the CARIBBEAN
CURRENT
D. EMPLOYMENT SECOND PREFERENCE VISA AVAILABILITY Continued heavy demand for numbers in the Employment Second preference category has required the establishment of a Worldwide cut-off date for the month of July. This action has been taken in an effort to hold number use within the annual numerical limit. Should there be an increase in the current demand pattern, it may be necessary to make this category completely “unavailable” prior to September 30, 2012.
The China and India Employment Second preference categories are already “unavailable”, and will remain so for the remainder of the fiscal year.
President Obama has announced an initiative to promote the exchange of higher education students between the United States, and Latin America including the Caribbean. The program’s name, “100,000 Strong in the Americas,” indicates the goal: 100,000 students traveling for study abroad each year, in both directions.
With a desire for increased understanding in the Western Hemisphere and closer people-to-people ties, the White House said that it hopes that the program will help participating governments through these exchanges work together to address common challenges including citizen security, economic opportunity, social inclusion, and environmental sustainability.
The foundation for the academic and research exchanges will be to develop new and existing relationships between institutions of higher education in the United States and in the Americas. Participating institutions will include universities, community colleges, and states. EducationUSA, a U.S. government-supported network of more than 100 advising centers located around the region, will play a leading role in making connections between U.S. institutions of higher learning and students throughout the hemisphere.
The U.S. government is partnering with other governments throughout the Caribbean and Latin America to make scholarships available to students who want to study abroad. Qualified students can gain access to advising and placement services, as well as timely access to information about opportunities for education in the United States and such crucial matters as visas.
The Administration welcomes and expects participation of the private sector. Donations from organizations, businesses and individuals can expand the reach of existing programs or create new avenues for educational opportunities that complement the goals of donors. The U.S. government works in concert with programs such as Gilman, Fulbright and the Global Undergraduate Exchange, to allow the private sector to help increase the number of exchange students or enhance their opportunities.
Brazil has emerged as a key partner in the exchange initiative. During summer 2012, the Department of Commerce and EducationUSA will be sponsoring an Education Mission to Brazil, with the goal of connecting approximately 60 U.S. institutions of higher learning with prospective students and university partners in Brazil.
In addition, Brazil’s President Rousseff has championed that country’s Science Without Borders campaign which aims to fund more than 100,000 Brazilian scholars and university students in the fields of mathematics and science to conduct research and study abroad over a four year period. The government will fund 75,000 students, with the private sector funding the rest. More than half of the students are expected to conduct their studies in the United States, contributing greatly to the goals of President Obama’s 100,000 Strong program.
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
