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An overview of post-9/11 realities, non-immigrant visas, immigrant visas, and recent policy changes affecting border controls and visa applications in the United States.
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Overview of US Immigration Policy REUBEN S. SEGURITAN 450 Seventh Avenue, Suite 1400, New York, NY 10123 Phone 212 695 5281 Fax 212 563 2664 www.seguritan.com Fourth Global Networking Convention Hilton Hawaiian Village, Honolulu, HI September 30, 2006
I. POST 9/11 REALITIES 1. In 2003, the Dept. of Homeland Security (DHS) was created to unify the vast national network of organizations involved in the nation’s security. a. Under this dept. are the 3 agencies charged with immigration enforcement: US Citizenship and Immigration Services (USCIS); Immigration and Customs Enforcement (ICE); and the Border and Customs Patrol (BCP).
2. The DHS and Department of State have key roles in determining visa eligibility. a. Tighter security checks have resulted in visa issuance delay; b. New visa application (DS-156) asks detailed questions on previous stays, violations and arrests; c. New DS-157 must be completed by all male applicants ages 16 to 45 and asks about movements the past 10 years.
3. All visitors with limited exceptions undergo biometric procedures upon entry under the US VISIT program. a. Biometric procedure involves digital, inkless finger scans and digital photograph upon entry to the US. b. VISIT’s automated entry/ exit control system records arrivals and departures and identifies overstays and security threats. c. Biometric capabilities are in place at 117 airports, 16 seaports and 153 land POEs.
Crackdown on non-citizens has increased. a. PATRIOT Act which took effect in 10/01 gives sweeping search and surveillance powers to domestic law enforcement and foreign intelligence agencies but undermines the Bill of Rights. b. Absconder Apprehension Initiative launched 1/02 was aimed at apprehending 314,000 persons with final deportation orders. • 783 Filipinos were deported in 2002 alone.
c. Since 9/11 the Border Patrol has apprehended 6 million border crossers. d. Catch and release system of stopping border crossers replaced by catch and return. e. In April this year, new “get tough” policy was launched and 1,100 undocumented aliens were rounded up in 40 states on its first day. Operation “Return to Sender” also started last 5/20.
II. NON-IMMIGRANT VISAS (NIVs) 1. Generally a. NIVs are issued for a specific purpose and for a limited period of time. b. NIV applicants must generally prove that they do not intend to abandon their foreign residence during their US stay. c. Overstay automatically renders multiple entry visa on passport void. d. More than 6 months of overstay subjects alien to 3-year bar against reentry to US; more than 1 year overstay results in 10-year bar. e. The most common NIVs are: B-1 and B-2 (for business and pleasure); F-1 (students); H-1B (workers in specialty occupations); H-2B (temporary or seasonal workers); H-3 (trainees) and J (exchange visitors and foreign medical graduates).
2. Business and Tourist Visas a. Among the reasons for obtaining B-1 or B-2 visas are business, visits to relatives and friends, health reasons, or participation in conferences; b. A considerable number of the estimated 20 million visitors to the US come on B-1 or B-2 visas.
3. Student Visas a. F-1 visas are issued for full-time study in US educational institutions. b. Student receives the I-20 upon admission and may either apply for a visa at a US consulate or change his/ her status, if already in the US. c. The Student and Exchange Visitor Information System (SEVIS) tracks all information about the student from the issuance of the I-20, visa issuance, enrollment, graduation to departure from the US since 1/30/2003.
4. H-1B visas a. The visa is issued for specialty occupations requiring at least a bachelor’s degree. b. H-1B visa yearly quota is 65,000. c. The quota does not apply to extensions with the same employer or transfer from one employer to another; or where the sponsor is an institution of higher education or its affiliate, or a non-profit research organization or governmental research organization. d. H-1B visas will again be available on October 1, 2007 and applications will be accepted starting April 1, 2007.
5. Change of NIV Status a. There must be no “preconceived intent” to engage in activities other than that for which NIV is issued. b. Activity contrary to that allowed in NIV within 30 days of entry leads to presumption of fraud and likely denial of change of status application.
III. Immigrant Visas (IVs) 1. Generally a. Immigrant visas may be obtained through sponsorship by close family member who is either a US citizen or permanent resident; or by sponsorship by a US employer; or by application for refugee or asylum based on well-founded fear of persecution on grounds of race, religion, nationality, membership in a social group or political opinion. b. Philippines is the 3rd top immigrant-sending country after Mexico and India. • In 2004, 57,877 Filipinos entered the US with 42,114 family-based and 15,497 employment-based sponsorships.
c. The per-country limit for preference immigrants is 7% of the total, i.e., 25,620. The visa number is chargeable to the country of birth, except that: • Alien child may be charged to country of either parent; • Spouse may be charged to state of accompanying spouse. • 4th preference beneficiary may be charged to spouse’s country, if both apply simultaneously. 2. Family Sponsorship a. There is an annual worldwide limit of 480,000 including immediate relatives; b. There is no quota for immediate relatives of US citizens: spouses, minor unmarried children and parents.
c. There are 4 family preferences: • 1st preference refers to unmarried adult children of US citizens; cases with priority dates earlier than 11/01/1991 are now being processed; • 2nd preference (2A) refers to spouses and unmarried minor children of permanent residents; cases with priority dates earlier than 4/22/2001 are now being processed. If petitioner becomes a US citizen and child turned 21, petitioner automatically converts to 1st preference, unless s/he elects to go to 2B. • 2nd preference (2B) refers to unmarried adult children of permanent residents; cases with priority dates earlier than 7/22/1996 are now being processed. If petitioner becomes a US citizen, petition converts to 1st preference unless s/he elects to remain in 2B. • 3rd preference refers to married children of US citizens; cases with priority dates earlier than 8/1/1990 are now being processed. Divorce converts petition to 1st preference or immediate relative. • 4th preference refers to siblings of US citizens; cases with priority dates earlier than 4/1/1984 are now being processed.
d. Philippine immigrant visa applicants have the longest waiting time for brothers and sisters (22 ½ years); unmarried adult children of US citizen (15 years); married children of US citizens (16 years). • Under S. 2611, unmarried and married children of naturalized World War II veterans will not be subject to quota. e. Death of petitioner revokes petition unless reinstated for humanitarian reasons. Substitution of certain relatives allowed to meet Affidavit of Support requirement.
f. Widow/er is eligible to apply if married for at least 2 years and petitions within 2 years from spouse’s death. g. Spouse, child or parent who is battered or a victim of extreme cruelty may self-petition. h. “Child” includes the stepchild who was under 18 when the step-relationship was established; illegitimate child; and those adopted before 16 and adopting parent had 2 years of legal custody and residence.
i. The Child Status Protection Act of 2002 prescribes favorable rules for age-out children. • It freezes the age of child beneficiary at certain stages of the immigration process to protect eligibility. • The child must apply for permanent residence within 1 year from visa availability.
If sponsor is a US citizen, child’s age is fixed at the time the I-130 is filed. • If sponsor is a permanent resident or a derivative beneficiary of a parent who is sponsored by a relative or employer, different rules apply in fixing the CSPA age. • CSPA age is fixed on the date the immigrant visa number becomes available minus the number of days the petition was pending. • In an unpublished decision of the Board of Immigration Appeals, the daughter of a beneficiary of an F-4 petition may benefit from the CSPA although she is already above 21 because the priority date of the F-4 petition is retained when it was automatically converted to F-2B and the daughter filed for adjustment of status before the CSPA became effective.
Employer Sponsorship a. 140,000 employment-based visas are available yearly, allocated to four categories or preferences. • 1st preference refers to extraordinary ability aliens; outstanding researchers; and multinational executives or managers. • 2nd preference refers to advanced degree professionals or aliens of exceptional ability. • 3rd preference refers to professionals (bachelor’s degree holders) or skilled workers (with at least 2 years experience) or unskilled workers (less than 2 years experience) such as domestics. • Visa numbers for professionals and skilled workers are retrogressed to 5/1/2002 while those of unskilled workers are retrogressed to 1/01/2001.
4th preference refers to special immigrants such as UN employees, WTC victims, ministers of religion, religious workers, etc. • 5th preference refers to aliens investing $500,000 to $1 million in job-creating businesses in the US. At least 10 US-qualified employees must be hired per investor; amount of investment depends on location of business. b. Labor certification is generally required before a US employer can petition a foreign worker. 1. US employer must demonstrate that the employment of the foreign worker will not displace US qualified workers and will not adversely affect the working conditions of US workers similarly situated.
2. US employer must conduct recruitment in accordance with Department of Labor (DOL) regulations for specific occupations. 3. Labor certifications will be issued if DOL is satisfied that no US worker will be displaced or adversely affected by the foreign hire. 4. Labor certification will be filed with the USCIS along with the sponsorship documents (I-140 form, etc.) 5. Under PERM, labor certification is expedited (45-60 days) but subjects more employers to audits.
c. Registered Nurses and Physical Therapists are exempted from labor certification. 1. They fall under the 3rd preference category which is currently retrogressed to 5/1/2002; 2. Despite this retrogression visa numbers are currently available because on May 11, 2005, a law was passed for the recapture of 50,000 unused visas, exclusively reserved for them and other Schedule A workers. 3. These visa numbers are expected to be used up by the end of October or at the latest, early November. 4. S. 2611 seeks to exempt them from quota through 2017.
4. Applying for a Green Card a. If the applicant is outside the US s/he applies at the US Consulate 1. Approved I-130 / I-140 petition is forwarded to the National Visa Center which reviews documents. If documentation is complete it sends out appointment letter for interview at the US consulate. 2. 3-year/ 10-year bar rule applies. 3. Rules on admissibility applies. 4. Applicant must enter the US within six months from issuance of visa.
2. If the applicant is in the US, s/he may apply for adjustment of status. a. S/he should have been inspected or paroled. b. Must be in lawful status. c. Visa must be immediately available. d. Applicant must be eligible and admissible e. Section 245 (i) allows applicants in unlawful status or who were not inspected to apply. He must be the beneficiary of a labor certification application or petition properly filed on or before 4/30/2001 and was physically present in the US on 12/ 20/2001; physical presence not necessary if petition or labor certification filed on or before 1/14/1998.
