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Saturday, August 14th, 2010
Dallas-based immigration attorney Stewart Rabinowitz offers informed commentary about Congressional Report.
The Secretary of the Department of Homeland Security (DHS) is charged with preventing the entry of terrorists, securing the borders, and carrying out immigration enforcement functions. U.S. Customs and Border Protection (CBP), a component of DHS, has primary responsibility for securing the borders of the United States, preventing terrorists and their weapons from entering the United States, and enforcing hundreds of U.S. trade and immigration laws. Within CBP, the U.S. Border Patrol’s mission is to detect and prevent the illegal entry of aliens across the nearly 7,000 miles of Mexican and Canadian international borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico.
In 2006, in response to requests for support enforcing federal immigration laws from the governors of Arizona, California, New Mexico, and Texas, President George W. Bush announced the deployment of up to 6,000 National Guard troops along the southern border to support the Border Patrol.
“What Bush did was unprecedented only in respect to the large potential number of National Guard troops to be used explicitly for that purpose, but it was certainly an escalation of the status quo,” explained Dallas-based immigration attorney Stewart Rabinowitz, “Bush also received a lot of political pressure from Conservatives to take such action.”
During 2006-2008, more than 30,000 individuals participated in the mission “Operation Jump Start.”
“There’s considerable debate about what the mission actually jump started,” Rabinowitz said.
The report concluded that illegal drug activities and crime continue. The day after the murder of Arizona rancher Robert Krentz on March 27, 2010, the Border Patrol seized 290 pounds of marijuana near his ranch. “That incident was also one of several catalysts in helping to bring about Arizona’s controversial and now somewhat embattled immigration law, Senate Bill 1070,” Rabinowitz concluded, “Of course it more directly brought about an increased military presence, especially along Arizona’s border with Mexico.”
The primary restriction on military participation in civilian law enforcement activities is the Posse Comitatus Act (PCA). The PCA prohibits the use of the Army and Air Force to execute the domestic laws of the United States except where expressly authorized by the Constitution or Congress.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.
Tags: Dallas immigration, Dallas Immigration attorney, Dallas Immigration lawyer
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Monday, June 21st, 2010
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
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Monday, May 24th, 2010
Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz &Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.
U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010, to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.
“This timely extension will help nearly 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.
Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.
To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.
“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit http://www.rabinowitzrabinowitz.com.
Tags: Dallas immigration, Dallas Immigration attorney, Dallas Immigration lawyer
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Monday, May 17th, 2010
Department of Homeland Security (DHS) Secretary Janet Napolitano announced on April 2, 2010 that the Transportation Security Administration (TSA) will begin implementing new enhanced security measures.
Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced that the Transportation Security Administration (TSA) will begin implementing new enhanced security measures for all air carriers with international flights to the United States to strengthen the safety and security of all passengers—superseding the emergency measures put in place immediately following the attempted terrorist attack on Dec. 25, 2009.
These new, more flexible security protocols—tailored to reflect the most current information available to the U.S. government—will apply to all passengers traveling to the United States.
“These new measures utilize real-time, threat-based intelligence along with multiple, random layers of security, both seen and unseen, to more effectively mitigate evolving terrorist threats,” said Secretary Napolitano. These new, enhanced measures are part of a dynamic, threat-based aviation security system covering all passengers traveling by air to the United States while focusing security measures in a more effective and efficient manner to ensure the safety and security of the traveling public. Passengers traveling to the United States from international destinations may notice enhanced security and random screening measures throughout the passenger check-in and boarding process, including the use of explosives trace detection, advanced imaging technology, canine teams, or pat downs, among other security measures.
Secretary Napolitano, in conjunction with the United Nations specialized agency International Civil Aviation Organization, has been leading a global initiative to strengthen the international aviation system against the evolving threats posed by terrorists, working in multilateral and bilateral contexts with governments as well as industry. Over the past three months, Secretary Napolitano has participated in regional aviation security summits around the world in Spain, Mexico and Tokyo, forging historic agreements with her international colleagues to strengthen the civil aviation system through enhanced information collection and sharing, cooperation on technological development and modernized aviation security standards.
Secretary Napolitano also commended release of the Surface Transportation Security Priority Assessment as another important step in efforts to protect the nation’s traveling public from acts of terrorism. The assessment is part of a review of the nation’s surface transportation security efforts conducted by the Obama Administration, which cover mass transit, commuter and long-distance passenger rail, commercial vehicles and pipelines.
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Monday, May 17th, 2010
Stewart Rabinowitz, of the Dallas-based law firm Rabinowitz & Rabinowitz, offers some astute observations about this recent Supreme Court decision.
The March 31, 2010 Supreme Court decision on the obligations of counsel for noncitizens charged with committing a crime has been applauded generally by immigration lawyers. The Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences arising out of criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”
The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The high Court’s decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.
“Everyone should have the right to effective counsel,” explained Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz, “it’s perhaps the most crucial tenet of our criminal justice system. By this decision, the Supreme Court affirms that immigrants should not be considered at fault when they rely on incorrect advice from their lawyers or where their lawyers fail to provide any immigration advice at all.” According to Rabinowitz, this decision is also a stark reminder that the lockstep increased criminalization of immigration law coupled with limitations on judicial discretion is not a solution to potential immigrant malfeasance. “In a compassionate or just nation, each person facing deportation should at least get an opportunity to have a day in court,” Rabinowitz concludes.
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Monday, May 17th, 2010
With increasing regularity, U.S. consular posts in Canada are refusing visas to third country national applicants (TCNs) with foreign degrees who have not previously been issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. Stewart Rabinowitz, of the Dallas-based firm Rabinowitz & Rabinowitz, offers some informed commentary on the matter.
U.S. consular posts in Canada are increasingly refusing visas to third country national applicants (TCNs) with foreign degrees who have not been previously issued H-1B visas from their home posts, and are referring them to their home countries for visa processing. U.S. posts in Canada have long shown a distrust of degrees that are not from the U.S. or Canada, in large measure due to past discoveries of fraudulent degrees from certain parts of the world.
While US posts in Canada do not publish this as official policy, they provide the following warning for H-1B applicants, “Evidence of qualifications must be original or certified copy. Consular offices in Canada may refuse to issue a visa to H-1B applicants if their education and/or work experience is based solely or predominately from a country other than the U.S. or Canada.”
Examining this issue from a historical perspective, Stewart Rabinowitz of the Dallas-based law firm Rabinowitz & Rabinowitz makes reference to situations that would arise in both Canada and the United States involving purported nurses from the Philippines. “Women, and occasionally men, would present nursing degrees from the Philippines that could not be verified, and in some cases turned out to be fraudulent,” Rabinowitz asserts, “an element of distrust became a natural outgrowth.”
More specifically, Rabinowitz considers the Canadian policy in light of policy at the US post in Ciudad Juarez. “The position of US posts in Canada mirrors that of the US post in Ciudad Juarez (“CDJ”) regarding nonimmigrant applicants who last entered the US in B-2 visitor visa status and who later changed to a different status through USCIS. If a foreign national enters the US in B-2 visitor visa status, changes status to H-1B, and then applies for an H-1B visa at CDJ, CDJ will not accept the visa application. The concern is that there may be inconsistencies between what the foreign national said to obtain the visitor’s visa and what the foreign national did by subsequently changing status while in the US which are best resolved by the home country. Putting aside concerns of whether such a position is actually justified, the policy also lessens the volume of third country nationals – non-Canadians – applying for nonimmigrant visas at US posts in Canada.”
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Saturday, May 15th, 2010
Dallas-based immigration lawyer Stewart Rabinowitz offers insights on recently released report: According to Rabinowitz, of the firm Rabinowitz & Rabinowitz, the report released on April 1, 2010 by Congressional Research Services on U.S. Immigration Policy on Permanent Admissions implies that U.S. policy faces conflicting and still unresolved issues.
Four major principles underlie current U.S. policy on permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees, and the diversity of admissions by country of origin. These principles are embodied in the Immigration and Nationality Act (INA). The INA specifies a complex set of numerical limits and preference categories that give priorities for permanent immigration reflecting these principles. Legal permanent residents (LPRs) refer to foreign nationals who live permanently in the United States.
During FY2008, a total of 1.1 million aliens became LPRs in the United States. Of this total, 64.7% entered on the basis of family ties. Other major categories in FY2008 were employment based LPRs (including spouses and children) at 15.0%, and refugees/asylees adjusting to LPR status at 15.0%. Over 17% of all LPRs come from Mexico, which sent 189,989 LPRs in FY2008.
“But U.S. Immigration Policy is not working well,” asserts Stewart Rabinowitz, a Dallas-based lawyer of the firm Rabinowitz & Rabinowitz, “and neither are efforts to reform it.”
Substantial efforts to reform legal information have failed in the recent past, prompting some to characterize the issue as a “zero-sum game” or a “third rail.”
“The trick is to initiate reforms that balance employer needs by increasing the supply of legally present foreign workers whom the country needs. These include temporary, low skilled, guest workers, and permanent high skilled “best and brightest” workers to keep the US globally competitive while allowing foreign workers to re-unite with their families, and by improving the policies governing immigration comprehensively – and simultaneously,” explains Rabinowitz.
But while state initiated solutions like the controversial Senate Bill 1070 in Arizona have become law to solely address the undocumented population, and an existing federal piece meal enforcement policy such as the somewhat similar 287 (g) program deputizing local and county police to act as immigration officers, neither can be mistaken for an elusive comprehensive policy for immigration reform. Comprehensive reform must address strengthening our borders, creating and implementing a meaningful guest worker program, adequately providing for the high skilled worker needs of the country, and deciding upon a policy to address the sizable undocumented population in the country.
“The Arizona law is poorly conceived and sets a dangerous precedent, acting more to polarize and foster discrimination,” Rabinowitz asserts, “and 287 (g) has been an unmitigated disaster, if only from the perspective of documented abuses involving foreign nationals detained by ICE. As far as addressing the significant issues involved, we are still very distant from any sort of comprehensive or meaningful reform. To address competing priorities, some genuine leadership and far-sighted initiatives will be needed, but right now, such a solution seems more like a pipedream,” Rabinowitz concludes.
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Saturday, May 15th, 2010
Dallas-based immigration lawyer Stewart Rabinowitz of the firm Rabinowitz & Rabinowitz offers some informed comment about recent 18-month extensions of Temporary Protected Status designations for foreign nationals from Nicaragua and Honduras.
U.S. Citizenship and Immigration Services (USCIS) recently announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for nationals of Nicaragua and Honduras from the current expiration of July 5, 2010 to the new expiration date of January 5, 2012. During the past year, DHS and the Department of State have reviewed the conditions in Nicaragua and Honduras. Based on this review, Secretary of Homeland Security Janet Napolitano has determined that an 18-month extension is warranted because the conditions that prompted the TPS designation in 1999 following the environmental disaster caused by Hurricane Mitch persist and prevent Nicaragua and Honduras from adequately handling the return of its nationals.
“This timely extension will help over 70,000 nationals from Nicaragua and Honduras remain in the U.S. legally and maintain work until their home countries have been able to recover from the damage accrued,” Rabinowitz says.
Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months provided they remain otherwise eligible for TPS. There are approximately 3,000 nationals of Nicaragua and approximately 66,000 nationals of Honduras (including people having no nationality who last habitually resided in either country) who may be eligible for re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the United States after December 30, 1998.
To maintain TPS status, Nicaraguan and Honduran TPS beneficiaries must re-register during the re-registration period from May 5 until July 5, 2010. It is important for eligible Nicaraguans and Hondurans to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and further application processing. Applications from Nicaraguan and Honduran TPS beneficiaries will not be accepted before May 5, 2010.
“USCIS will issue a new Employment Authorization Document to eligible TPS beneficiaries who can re-register in a timely fashion and apply for EADs,” states Rabinowitz. “USCIS is automatically granting a 6-month extension for existing EADs held by Nicaraguan and Honduran TPS beneficiaries, through January 5, 2011.This extension will allow sufficient time for eligible TPS beneficiaries to re-register and receive new EADs without any break in their authorization to be employed,” concludes Rabinowitz.
Tags: Add new tag, Dallas Immigration attorney, Dallas Immigration lawyer, Dallas Immigration lawyers
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Monday, January 25th, 2010
Immigration lawyer Stewart Rabinowitz of the Dallas-based firm Rabinowitz & Rabinowitz offers some perspective on how USCIS plans to prevent, detect, and address fraud within the H-1B visa program in 2010.
In September 2008, USCIS published a report entitled H-1B Benefit Fraud & Compliance Assessment of the H-1B visa program. As background, the H-1B classification permits a foreign national to work for a U.S. employer in a position deemed professional, and which requires at minimum a bachelor’s degree. Each H-1B employer must certify to the Department of Labor that the wage paid to the foreign national by the H-1B employer is the required wage (frequently the prevailing wage) in the area of intended employment, and must document the source of establishing wage offered, in addition to meeting many other technical requirements. USCIS collects substantial fees for filing H-1B petitions, including a $500.00 anti-fraud fee.The anti-fraud fee is currently $500.00. As of 2009, USCIS had collected approximately $90 million in anti-fraud fees.
The report, based on a sampling of 246 cases from a total population of 96,827 cases, revealed fraud in 33 cases of the sample, and technical violations in 18 cases.
In response to the report, U.S. Senator Charles E. Grassley (R-Iowa) wrote USCIS asking what plans the agency has to counter fraud and technical violations which the 2008 report revealed. “The USCIS response to Senator Grassley’s letter was in itself revealing,” says Stewart Rabinowitz, an immigration lawyer for the Dallas-based firm Rabinowitz and Rabinowitz, “In a public response to Senator Grassley’s letter, they stated that they’d be seeking greater evidence from petitioning H-1B employers that an H-1B employee will be performing at a site where that employer may place that worker, that USCIS will be expanding its site visit inspections of H-1B employers to approximately 25,000 (up from about 5,000 in 2009), and that USCIS will begin using open source commercial means to independently verify employer information.”
Rabinowitz can see the writing on the wall. “In this time of economic downturn, it is clear that USCIS will subject U.S. employers to greater scrutiny prior to approving an H-1B petition, requiring that even relatively simple H-1B cases become minutely well documented and thus become more expensive to prepare,” Rabinowitz asserts, “ H-1B employers should be prepared to document compliance with each of the requirements of the H-1B program, and with 25,000 inspections taking place, H-1B employers should expect a visit from USCIS agents during 2010.” But to what end? “This may result in a chilling effect, causing potential H-1B employers to not use the H-1B program, an outcome that may not benefit U.S.employers or U.S. workers in the long run. A U.S. employer who is unable to find required but scarce talent domestically and chooses to forego using the H-1B program to employ needed and available foreign talent may be less competitive globally as a consequence,” Rabinowitz concludes.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit Rabinowitzrabinowitz.com.
Tags: Dallas immigration, Dallas Immigration attorney, Dallas Immigration lawyer
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Wednesday, September 9th, 2009
In an effort to fashion a remedy for certain widowed foreign national spouses who were not married to U.S. citizens for 2 years at the time that the U.S. citizen died, U.S. Attorney General Janet Napolitano announced a new policy to assist such persons to remain in the United States, despite the loss of their citizen partner.
As background, currently if a foreign national marries a United States citizen and the citizen partner dies, the widowed foreign national spouse can still remain eligible to gain permanent resident status, provided he or she was the spouse of a United States citizen for at least 2 years at the time of the citizen’s death, and was not legally separated from the citizen at the time the citizen spouse died. Such a person must file with USCIS within 2 years after the citizen spouse’s death to remain eligible to gain an immigration benefit from the marriage, provided the widowed foreign national spouse has not re-married. For a widowed foreign national spouse whose marriage was not yet two years old at the time of the citizen spouse’s death, USCIS takes the position that a petition based on that marriage and a corresponding adjustment application must be denied. This circumstance as been labeled the “widow penalty.”
To alleviate the dual impact of the death of the U.S. citizen spouse, and imminent loss of legal status in the U.S. for this group of widowed foreign national spouses, the new policy permits a widowed foreign national spouse to file for “deferred action status.” Deferred Action status is a form of prosecutorial discretion whereby the Department of Homeland Security agrees not to remove the widowed foreign national spouse for a 2 year period, and permits the widowed foreign national spouse and unmarried children under 21 and currently residing in the United States to also remain here. Foreign national spouses granted deferred action status can also apply for employment authorization and travel permission.
To benefit from deferred action status, the widowed foreign national spouse must have been married to but not legally separated or divorced from the U.S. citizen spouse, must not have not subsequently married anyone else, and must be currently living in the U.S.
The widow penalty issue has been the subject of ongoing litigation and several U.S. Courts of Appeal have interpreted the underling federal statute far differently than USCIS. For a widowed foreign national spouse residing in the 1st or 6th or 9th Circuits, under the law of those circuits, such a person remains eligible to gain permanent residence based on marriage to the deceased U.S. citizen, despite the death of the citizen spouse within 2 years of marriage.
Deferred action status is an interim, administrative remedy. Only a legislative change can provide long term relief for this group of widowed foreign national spouses.
*Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law Firm (http://www.rabinowitzrabinowitz.com). He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
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