How to Maintain Employer-Employee Relationship

February 12, 2010

(In response to USCIS memo)

There has been a recent increase in deportations of a number of Indian H1B IT workers from Newark and JFK airports. This has sent confusion and shock through H-1B community. H-1B employers, employees and their attorneys alike are astounded by this. Customs and Border Patril has been singling out individuals arriving on H-1B visas even before their primary immigration inspection, proceeded to put these individuals through sham questioning, forced them into making coercive statements, issued expedited removal orders, and sent them back to their home country. What is their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, in other words, at a client site or third party site!

H1B employees working at a client site or a third party site is anything but a new practice, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that this newfound focus on entering immigrants with H1-Bs by CBP inspectors was triggered by an overzealous misinterpretation of a recent Memo issued by the Associate Director of U.S. Citizenship and Immigration Services.

The Neufeld Memo essentially underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

This situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Additionally, H1B employees should be educated on how to answer questions from overbearing government officials.

We at the Law Offices of N.M. Gehi, P.C., always emphasize to H-1B employers and employees alike that strict adherence to the governing regulations and requirements of the H-1B program are necessary.

The focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee.

When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

Ways to meet the “actual” control requirement for H1-B when a third party site is involved include the following:

  • Weekly progress reports and an itinerary of work between the employer and employee working at a third party site;
  • Proper documentation and reporting of any and all absences, sick leave, vacation, personal leave by the employee to the employer;
  • Documentation showing the supervision of the employee with regard to day to day work at all third party sites;
  • Documentation of feedback from employer to employee on progress of work and any projects the employee is working on;
  • Periodic reviews of the employee showing the regular monitoring of the employee by the employer.

Our law office remains up to date on the requirements for obtaining and maintaining an H1-B visa for both the employee and employer. We have been successful in getting H1-Bs for clients that are employers and employees alike. Please contact The Law Offices of N.M. Gehi, P.C. for more information on successfully meeting the requirements of the H1-B visa. The firm has processed thousands of H-1Bs and hundreds of employment-based immigrant visas. The firm website is www.gehilaw.com. For a free initial personal consultation, please call 718-263-5999.

“The Law Offices of N.M.Gehi has successfully handled hundreds of audits, employer-employee matters and complex immigration matters.”

DISCLAIMER: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.


VISA BULLETIN MARCH 2010

February 12, 2010

Visa Bulletin

Number 18
Volume IX
Washington, D.C.

VISA BULLETIN FOR MARCH 2010

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of 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 February 5th 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, 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.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st 22JUN04 22JUN04 22JUN04 01OCT92 01MAR94
2A 01APR06 01APR06 01APR06 01JUL04 01APR06
2B 01FEB02 01FEB02 01FEB02 15JUN92 22AUG98
3rd 22MAY01 22MAY01 22MAY01 08OCT92 01MAR92
4th 15JAN00 15JAN00 15JAN00 08DEC95 01SEP87

*NOTE: For March, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUL04. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUL04 and earlier than 01APR06. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)


All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIP-PINES
Employ-ment -Based




1st C C C C C
2nd C 08JUL05 01FEB05 C C
3rd 15DEC02 15DEC02 01JUL01 01JUL02 15DEC02
Other Workers 01JUN01 01JUN01 01JUN01 01JUN01 01JUN01
4th C C C C C
Certain Religious Workers C C C C C
5th C C C C C
Targeted Employ-ment Areas/ Regional Centers C C C C C
5th Pilot Programs 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 March, 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 29,600 Except:
Egypt: 18,000
Ethiopia: 16,950
Nigeria: 14,350
ASIA 12,000
EUROPE 24,700
NORTH AMERICA (BAHAMAS) 4
OCEANIA 880
SOUTH AMERICA, and the CARIBBEAN 985

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-2010principals 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 APRIL

For April, 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 29,600 Except:
Egypt: 18,000
Ethiopia: 16,950
Nigeria: 14,350
ASIA 12,000
EUROPE 24,700
NORTH AMERICA (BAHAMAS) 4
OCEANIA 880
SOUTH AMERICA, and the CARIBBEAN 985

D. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: February 5, 2010


USCIS Responds to Recent Earthquake in Haiti

February 12, 2010

Temporary Protection Status: FAQs

As a result of the recent earthquake in Haiti, the USCIS has implemented the Temporary Protection Status program for Haitian nationals in the United States. Below are some frequently asked questions about this program:
In January of 2010, the Department of Homeland Security Secretary, Janet Napolitano, announced that Haitians may temporarily remain in the United States under the 18-month designation of Temporary Protected Status. As a result of the earthquake, Haitians who live in the United States are unable to return safely to their country. This means Haitian nationals, as well as other individuals without nationality who last habitually resided in Haiti, present in the United States prior to January 12, 2010 are allowed to remain and work in the United States regardless of their current status until it is safe to return to Haiti.

In addition, deportations of Haitians in the United States have been suspended as of January 13, 2010. For more information on Haitians in the U.S. who are eligible to apply for TPS please contact The Law Offices of N.M. Gehi, P.C.

What is Temporary Protected Status?

TPS is granted by the Secretary of Homeland Security to eligible nationals of a certain country (or persons without nationality who last habitually lived in that country) who have experienced temporary negative conditions, such as armed conflict, environmental disaster, or extraordinary and temporary conditions, that prevent nationals of the country from returning safely or for the country to handle their return adequately. TPS allows for beneficiaries to remain in the United States and legally work for a set time period until they can safely return home.

I am a Haitian national; and currently I cannot return to Haiti due to the earthquake and would like to apply for TPS. Am I eligible to apply for TPS?

To qualify, you must:
• Be a national of Haiti, or a person without nationality who last habitually resided in Haiti;
• Have continuously resided in the United States since Jan. 12, 2010.
• Have been continuously physically present in the United States since the date of the Federal Register Notice publication, which will be Jan. 21, 2010.
• Meet certain immigrant admissibility requirements, and other TPS eligibility requirements
• Satisfactorily complete all TPS application procedures as described in the Federal Register notice announcing Haitian TPS

If I am a student or have another immigration status, can I also apply for TPS?

Yes. If you are eligible, you may have TPS in addition to your other status.

Who is a Haitian national?

Under U.S. Immigration law a “national” as “a person owing permanent allegiance to a state.” USCIS also looks to Haitian law to determine who meets the definition of a national. Haiti’s constitution states “any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of their birth.” A person can also acquire Haitian citizenship through naturalization under Haitian law. There are circumstances under which a Haitian can lose his or her citizenship, such as voluntary renunciation of Haitian citizenship. You will be accepted as a Haitian national for TPS purposes if you provide documentary support that satisfactorily demonstrates you meet the criteria for such a national as defined by Haitian law. If you have any questions as to whether you are a Haitian national, please contact The Law Offices of N.M. Gehi, P.C.

When can I submit my initial application for TPS?

The six-month registration period began on Jan. 21, 2010, the date the Federal Register Notice is published, and continues through July 20, 2010. You must file during the registration period and your application must be postmarked on or before the last day of the registration period.

How do I apply for TPS?

You must register for TPS by filing both an Application for Temporary Protected Status, Form I-821, and an Application for Employment Authorization, Form I-765, with any appropriate fees (see table below) or fee waiver requests, and supporting documentation. Please contact The Law Offices of N.M. Gehi, P.C. for more information on filing. I am a national of Haiti and arrived in the United States after Jan. 12, 2010. Am I eligible for TPS? No. To be eligible for benefits, nationals of Haiti (or persons having no nationality who last habitually resided in Haiti) must have continuously resided in the United States since January 12, 2010.

If I resided in the United States before Jan. 12, 2010, but was temporarily out of the country on either Jan. 12, or on Jan. 21, when the TPS designation became effective, or both dates, am I eligible for TPS?

You must demonstrate with supporting documentation that you have both continuously resided in the United States since Jan. 12, 2010, and have been continuously present since Jan. 21, 2010, the effective date of the TPS designation for Haiti. However, a “brief, casual and innocent absence” from the United States will not break continuous residence or presence.

Can I use TPS as a basis for obtaining permanent resident status?

No. TPS is a temporary benefit that does not lead to lawful permanent resident status or confer any other immigration status.

May I apply for another immigration benefit while registered for TPS?

Yes. Registration for TPS does not prevent you from applying for nonimmigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible.


USCIS Issues Additional Information to Employers Whose H-1B Petitions for Health Care Specialty Occupations Have Been Denied

July 25, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today issued guidance to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation prior to May 20, 2009.

If the Form I-129 was denied solely on the basis that the beneficiary did not possess a Master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009 memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (see Related Links section of this page), which provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative. 

USCIS is requesting that employers whose petitions were denied on the above basis send an email to the Service Center that issued the denial of Form I-129 to request review of the denial.  An affirmative request for review from the petitioner or its representative is required to expedite this process.  In light of recently-issued guidance, USCIS is providing a special accommodation to the public by initiating Service Motions to Reopen (upon receiving an email request) in lieu of requiring petitioners to file an appeal.  Therefore, USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance. 

Requests should include “PT/OT Service Motion Request” in the subject line of the email, and will be accepted through August 14, 2009.  Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be sent to:
csc-ncsc-followup@dhs.gov

Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be sent to:  vsc.ncscfollowup@dhs.gov.  

Affected petitioners requesting USCIS review of their H-1B petition(s) are not required to submit a copy of the May 20, 2009 memorandum, but should explain how the beneficiary meets the standards set forth in that memorandum. Also, as with the reopening on a Service Motion, USCIS must be satisfied prior to approval that the beneficiary is currently eligible to practice in their respective health care occupation in the state of intended employment.  Petitioners are advised to document this evidence.  In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information.  If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary’s continuing eligibility, the original denial of the case will be affirmed.

Source: www.uscis.gov


USCIS Naturalizes First Soldier in Military Pilot Recruiting Program

July 25, 2009

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today naturalized the first nonimmigrant to enlist in the military under the Defense Department’s Military Accessions Vital to the National Interest (MAVNI) pilot recruiting program. 

 Dr. Brown* was the first nonimmigrant to sign a contract under the MAVNI program. He enlisted in the Army in April, and in June, he applied to become a naturalized citizen. One month later, he passed his naturalization test and recited the Oath of Allegiance becoming a citizen of the United States.

“This ceremony happened in record time because our military liaison team maintained close coordination with the Army and tracked Dr. Brown’s naturalization packet from the time he applied with our Nebraska Service Center until today,” said Debra Rogers, acting Deputy Associate Director of USCIS’ Domestic Operations Directorate and head of USCIS’ Military Liaison team. “The MAVNI program is vital to the national interest, and as such we are very focused on its success.”

As a medical professional, Dr. Brown was commissioned as a Captain in the Army Medical Corps on July 3, and will serve in the Army for the next six years. 

The one-year MAVNI pilot program will allow up to 1,000 non-citizens, who do not have permanent resident status but have been here legally for at least two years, to join the Army if they have the needed medical or foreign language and cultural expertise. 

While citizenship is not guaranteed, nonimmigrants who apply under the MAVNI pilot program must undergo the same background checks, security screening and meet all of the general qualifications to become citizens of the United States, as do all other members of the U.S. armed forces who apply for citizenship.

More information on the MAVNI program is available online at http://www.goarmy.com/info/mavni or in the Defense Department fact sheet:  http://www.defenselink.mil/news/mavni-fact-sheet.pdf.

 


* The name “Brown” is a pseudonym used at the request of the army.

Source: http://www.uscis.gov


USCIS VISA BULLETIN FOR AUGUST 2009

July 25, 2009

AUGUST 2009 VISA BULLETIN

A.   STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during August. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of 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 July 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, 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.)

Fam-ily All Charge- ability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPP-INES
1st  08JAN03 08JAN03 08JAN03  01JAN91  15SEP93
2A 15JAN05 15JAN05 15JAN05 22SEP02 15JAN05
2B 01MAY01 01MAY01 01MAY01 08MAY92 01MAY98
3rd 01NOV00 01NOV00 01NOV00 01JUL91 08AUG91
4th 22DEC98 22DEC98 22DEC98 01AUG95 08SEP86

*NOTE:  For August, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP02.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP02 and earlier than 15JAN05.  (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

  All
Charge-ability
Areas
Except
Those
Listed
CHINA-
mainland born
INDIA MEXICO PHILIP-PINES
Employ-ment
-Based
         
1st C C C C C
2nd C 01OCT03  01OCT03  C C
3rd U U U U U
Other
Workers
U U U U U
4th C C C C C
Certain Religious Workers C C C C C
5th C C C C C
Targeted Employ-ment Areas/
Regional Centers
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-2009 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 August, immigrant numbers in the DV category are available to qualified DV-2009 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:
22,750
Ethiopia:
22,800
Nigeria:
15,650
ASIA Current  
EUROPE Current  
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-2009 program ends as of September 30, 2009.  DV visas may not be issued to DV-2009 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009.  DV visa availability through the very end of FY-2009 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 SEPTEMBER

For September, immigrant numbers in the DV category are available to qualified DV-2009 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 Except:
Egypt:
22,900
Ethiopia:
23,900
ASIA CURRENT  
EUROPE CURRENT  
NORTH AMERICA (BAHAMAS) CURRENT  
OCEANIA CURRENT  
SOUTH AMERICA, and the CARIBBEAN CURRENT  

D. SEPTEMBER VISA AVAILABILITY

Heavy applicant demand for numbers in the Employment Fourth preference is likely to require the establishment of a cut-off date, or the preference becoming “Unavailable” for September.   This action would be necessary to keep visa issuances within the annual preference numerical limits.    The preference can be expected to return to a “Current” status for October, the first month of the new fiscal year.  

E.  DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND NATIONALITY ACT (INA)

The State Department is required to make a determination of the worldwide numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an annual basis.  These calculations are based in part on data provided by Citizenship and Immigration Services (CIS)regarding the number of immediate relative adjustments in the preceding year and the number of aliens paroled into the United States under Section 212(d)(5) in the second preceding year.  Without this information, it is impossible to make an official determination of the annual limits.  To avoid delays in processing while waiting for the CIS data, the Visa Office (VO) bases allocations on the minimum annual limits outlined in Section 201 of the INA.  On June 9th, CIS provided the required data to VO.

The Department of State has determined the family and employment preference numerical limits for FY-2009 in accordance with the terms of Section 201 of the INA.  These numerical limitations for FY-2009 are as follows:

 Worldwide Family-Sponsored preference limit:         226,000
Worldwide Employment-Based preference limit:         140,000

Under INA Section 202(A), the per-country limit is fixed at 7% of the family and employment annual limits.  For FY-2009 the per-country limit is 25,620.  The dependent area annual limit is 2%, or 7,320.         

F. DIVERSITY VISA LOTTERY 2010 (DV-2010) RESULTS

The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2010 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 102,800 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-2010 numbers will be used during fiscal year 2010 (October 1, 2009 until September 30, 2010).

Applicants registered for the DV-2010 program were selected at random from over 13.6 million qualified entries received during the 60 day application period that ran from noon on October 2, 2008, until noon, December 1, 2008.  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 the Bureau of 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 2010 will end.  Selected applicants who do not receive visas by September 30, 2010 will derive no further benefit from their DV-2010 registration.  Similarly, spouses and children accompanying or following to join DV-2010 principal applicants are only entitled to derivative diversity visa status until September 30, 2010.

Only participants in the DV-2010 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-2011 lottery if they wish.  The dates for the registration period for the DV-2011 lottery program will be widely publicized during August 2009.

* 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-2010 program: 

AFRICA  
ALGERIA 1,957 ETHIOPIA 5,200 NIGER 56
ANGOLA 46 GABON 19 NIGERIA 6,006
BENIN 369 GAMBIA, THE 108 RWANDA 178
BOTSWANA 23 GHANA 8,752 SAO TOME AND PRINCIPE  0  
BURKINA FASO 184 GUINEA 737 SENEGAL 520
BURUNDI 83 GUINEA-BISSAU 8 SEYCHELLES  4    
CAMEROON 3,719 KENYA 4,619 SIERRA LEONE 3,898
CAPE VERDE 6 LESOTHO 2 SOMALIA 229
CENTRAL AFRICAN REP. 20 LIBERIA 2,172 SOUTH AFRICA 863
CHAD 27 LIBYA 152 SUDAN 1,084
COMOROS 9 MADAGASCAR 31 SWAZILAND 11
CONGO 92 MALAWI 50 TANZANIA 221
CONGO, DEMOCRATIC REPUBLIC OF THE 1,817 MALI 129 TOGO 827
COTE D’IVOIRE 658 MAURITANIA 20 TUNISIA 164
DJIBOUTI 33 MAURITIUS 78 UGANDA 396
EGYPT 4,201 MOROCCO 3,124 WESTERN SAHARA  0
EQUATORIAL GUINEA 15 MOZAMBIQUE 8 ZAMBIA 93
ERITREA 799 NAMIBIA 16 ZIMBABWE 170

 

ASIA  
AFGHANISTAN 345 ISRAEL 99 OMAN 2
BAHRAIN 15 JAPAN 302 QATAR 13
BANGLADESH 6,001 JORDAN 143 SAUDI ARABIA 104
BHUTAN 2 NORTH KOREA 3 SINGAPORE 37
BRUNEI 0 KUWAIT 70 SRI LANKA 650
BURMA 473 LAOS 3 SYRIA 98
CAMBODIA 359 LEBANON 181 TAIWAN 368
HONG KONG SPECIAL ADMIN. REGION 49 MALAYSIA 60 THAILAND 54
INDONESIA 277 MALDIVES  0 TIMOR-LESTE  0
IRAN 2,773 MONGOLIA 144 UNITED ARAB EMIRATES 30
IRAQ 142 NEPAL 2,132 YEMEN 72

 

EUROPE  
ALBANIA 2,311 GREECE 48 NORWAY 60
ANDORRA 6 HUNGARY 192 PORTUGAL 51
Macau Special Admin Region 17
ARMENIA 1,332 ICELAND 36 ROMANIA 674
AUSTRIA 181 IRELAND 167 RUSSIA  1,912 
AZERBAIJAN 324 ITALY 470 SAN MARINO 0
BELARUS 1,178 KAZAKHSTAN 343 SERBIA 367
BELGIUM 117 KYRGYZSTAN 205 SLOVAKIA 108
BOSNIA & HERZEGOVINA 72 LATVIA 90 SLOVENIA 19
BULGARIA 842 LIECHTENSTEIN  0 SPAIN 169
CROATIA 74 LITHUANIA 195 SWEDEN 163
CYPRUS 23 LUXEMBOURG 2 SWITZERLAND 185
CZECH REPUBLIC 116 MACEDONIA, FORMER YUGOSLAV REP. OF 272 TAJIKISTAN 178
DENMARK 75
Greenland 2
MALTA 7 TURKEY 2,826
ESTONIA 66 MOLDOVA 724 TURKMENISTAN 108
FINLAND 83 MONACO 0 UKRAINE 5,499
FRANCE 703 French Guiana 4 French Polynesia 8
French Southern & Antarctic Lands  0 Guadeloupe 13
Martinique 4
New Caledonia 0
Reunion 5
St. Pierre & Miquelon 0
MONTENEGRO 13 UZBEKISTAN 4,059
GEORGIA 648 NETHERLANDS 200
Aruba 16
Netherlands Antilles 22
VATICAN CITY  0
GERMANY 2,188 NORTHERN IRELAND 31  

 

NORTH AMERICA  
BAHAMAS, THE 18

 

OCEANIA  
AUSTRALIA 705
Christmas Islands 2
Coco Island 0
NAURU  3 SOLOMON ISLANDS  3
FIJI 674 NEW ZEALAND 258
Cook Islands 0
Niue 16
TONGA 80    
KIRIBATI 1 PALAU 12 TUVALU  1        
MARSHALL ISLANDS  0      PAPUA NEW GUINEA 15 VANUATU  7 
MICRONESIA, FEDERATED    STATES OF 0 SAMOA 0 WESTERN SAMOA  26

 

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN  
ANTIGUA AND BARBUDA 9 DOMINICA 18 SAINT LUCIA 19
ARGENTINA 188 GRENADA 9 SAINT VINCENT AND THE GRENADINES 9
BARBADOS 29 GUYANA 41 SURINAME 10
BELIZE 10 HONDURAS 82 TRINIDAD AND TOBAGO 226
BOLIVIA 142 NICARAGUA 50 URUGUAY 17
CHILE 53 PANAMA 39 VENEZUELA 624
COSTA RICA 74 PARAGUAY 29  
CUBA 298 SAINT KITTS AND NEVIS 6  

Natives of the following countries were not eligible to participate in DV-2010:  Brazil, Canada, China (mainland-born, excluding Hong Kong S.A.R., and Taiwan), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

G. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB.  The INTERNET Web address to access the Bulletin is:   

                    http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State”‘s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example:  Subscribe Visa-Bulletin  Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the  “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.) 

Department of State Publication 9514
CA/VO:July 9, 2009

Source: www.travel.state.gov


Secretary Napolitano Strengthens Employment Verification with Administration’s Commitment to E-Verify

July 18, 2009

Release Date: July 8, 2009

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.”

E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.  After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.

On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries.  In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent.

In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens.  Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect.  That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes.  E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report).

For more information on E-Verify, visit www.uscis.gov/everify.

###

Source: www.uscis.gov


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