August 2013 Visa Bulletin Releases – EB2 for India move up to 2008

The Department of State has released the latest visa bulletin for August 2013. In that bulletin there have been several significant movements. First, in terms of family based applications, the F2A category – spouses and children of permanent residents, has come current. Second, the EB-2 for India has moved forward to January 1, 2008. It should be noted that both of these moves were to stimulate demand. DOS has stated that there are many cases in the backlog in both categories but that people are not filing the I-485s and completing the process, so they have moved the dates up to use up the remaining visas for this year. With that in mind, they have stated that the dates will retrogress sometime after September, if not before.

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USCIS and implementation of the Supreme Court DOMA decision

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USCIS has issued a memo implementing the US Supreme Court’s decision in overturning DOMA (the Defense of Marriage Act).  In a statement, SecretaryNapolitano stated:

After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse

In determining your ability to file, USCIS will generally look at the legality of the marriage in the State or Country in which you were married, not at the legality in the State in which you live.  Below is a link to the USCIS webpage which has some additional information.  It should also be noted that Secretary Kerry also issued a statement that the DOS will be revising its policies to come in compliance as well.

Link to USCIS Website Information

July Demand Data for EB2 and EB3 cut-off dates

The Department of State has once again released the demand data used to determine the July cut-off dates for the EB-2 and Eb-3 category. It is important to note that there are additional cases outside of these numbers that have not been counted (those who have already filed an I-485, for instance, are not included. Nether are any new cases that have been filed as of the cut-off date they have used (June 7, 2013) to determine the July Visa Bulletin).

Currently, the DOS lists the following demand in the EB-2 category (please note, this is cumulative demand as of January 1, 2013):

India: 43,100 cumulative demand

China: 5,100 cumulative demand

All Other: 200 cumulative demand

For the EB-3 category, the following is the demand (same dates):

India: 41,175

China: 75

Mexico: 25

Philippines: 5,500

All Other: 400

This will give you an idea as to why the July Visa Bulletin has the cut-off dates that it does.

July Visa Bulletin Released: India 2nd Preference may Progress In the Coming Months

The Department of State recently released the July visa bulletin. While forward movement for the coming month was small or non-existent (1st preference remains current for all countries, 2nd preference is current for all but India (Sept. 1, 2004) and China (August 8, 2008), 3rd preference is at January 1, 2009 for all countries except India (January 22, 2003) and the Philippines (October 1, 2006)) the bigger news was the projected movement in the coming months. According to the DOS, China 2nd preference will move forward about 2 months, nothing major but good movement forward. However, for India, the DOS states as follows:

At this time it appears that the availability of “otherwise unused” Employment Second
preference numbers will allow for movement of this cut-off date in August and/or September. It is expected that such movement will generate heavy new applicant demand, primarily by those who are upgrading their status from the Employment Third preference category. A sustained level of heavy demand could impact the cut-off date at some point during fiscal year 2014.

Because other countries have not used up all their visas, they will start moving India forward, probably a good bit, but their prediction is that this will just exacerbate demand even more because the 3rd preference category is even more backlogged for India. as the new bulletins are published, I will post the new dates right here on this blog.

Immigration and the Economy: Myths and Facts

Below is a link to an article from the Immigration Policy Center of the American Immigration Council which goes through many of the myths about Immigration and the economy and explains why they are incorrect.

For the most part, immigration actually helps our economy, does not depress wages, and actually stimulates growth of the economy and of job opportunities.  They also point to several studies that show that there is no correlation between immigration and unemployments in general, and minority unemployment specifically.  In addition, they cite to data from the 2012 Current Population Survey that show that, for the most part, immigrants and native-born workers are not competing for the same jobs, thereby dispelling the myth that they are taking jobs from US workers.  I think that the article is definitely worth reading for those interested in this topic.

The Economic Blame Game: Immigration and Unemployment | Immigration Policy Center.

Big Case for TPS holders decided in 6th Circuit

Just the other day the 6th Circuit Court of appeals overturned the denial of an Adjustment of Status application filed on behalf of a TPS holder. The TPS recipient had entered the US illegally, but had a US Citizen wife. The couple filed an I-130 (family based petition) and I-485 (application to adjust status). While USCIS approved the I-130 they denied the I-485. Generally, those who enter the US illegally are prohibited from adjusting their status to a permanent resident because of Section 245 of the Immigration and Nationality Act (INA). However, those in TPS status are considered to be in status and are able to work and stay in the US. Unfortunately, the part of the statute that states that they are to be considered as admitted and legal has always been read by USCIS to only apply to the ability of TPS recipients to work, and not extended to their ability to adjust status (if they entered the US illegally). Therefore USCIS has consistently denied such I-485 applications.

The 6th Circuit, however, stated that the only support for this position is the history of USCIS adjudications and that it has no support in the statute or legislative history. Because such a reading was against the plain language of the statute, the 6th Circuit went on to overturn the decision. This means that those person in TPS status who entered the US illegally are now able to adjust their status to that of a permanent resident if they are otherwise eligible (at least if they live within the jurisdiction of the 6th Circuit). It still remains to be seen if USCIS will appeal the decision and whether they will adopt the decision for the entire USA, or limit its applicability to the 6th Circuit.

USCIS begins returning H-1B applications not Selected in Lottery

USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.

We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.