IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Europe Travel Alert

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Europe Travel Alert: LAW OFFICES OF NORKA M. SCHELL, LLC The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe f...

Europe Travel Alert

LAW OFFICES OF NORKA M. SCHELL, LLC

The State Department alerts U.S. citizens to potential risks of travel to and throughout Europe following several terrorist attacks, including the March 22 attacks in Brussels claimed by ISIL.  Terrorist groups continue to plan near-term attacks throughout Europe, targeting sporting events, tourist sites, restaurants, and transportation.  This Travel Alert expires on June 20, 2016.

U.S. citizens should exercise vigilance when in public places or using mass transportation. Be aware of immediate surroundings and avoid crowded places. Exercise particular caution during religious holidays and at large festivals or events.

U.S. citizens should also: :

• Follow the instructions of local authorities, especially in an emergency.
• Monitor media and local information sources and factor updated information into personal travel plans and activities.
• Be prepared for additional security screening and unexpected disruptions.
• Stay in touch with your family members and ensure they know how to reach you in the event of an emergency.
• Register in our Smart Traveler Enrollment Program (STEP).

European governments continue to guard against terrorist attacks and conduct raids to disrupt plots. We work closely with our allies and will continue to share information with our European partners that will help identify and counter terrorist threats.

For further information:

• See the State Department's travel website for the Worldwide Caution, Travel Warnings, Travel Alerts, and Country Specific Information.
• Enroll in the Smart Traveler Enrollment Program (STEP) to receive security messages and make it easier to locate you in an emergency.
• Call 1-888-407-4747 toll-free in the United States and Canada or 1-202-501-4444 from other countries from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays).

Matter of Y-S-L-C-

Decided November 23, 2015 
U.S. Department of Justice Executive Office for Immigration Review 
Board of Immigration Appeals 

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge. 

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Matter of Henry Javier MENDOZA OSORIO

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: Matter of Henry Javier MENDOZA OSORIO: LAW OFFICES OF NORKA M.SCHELL, LLC 11 Broadway, Suite 615 New York, New York 10004 Tel(s). (212)564-1589        (973)621-9300 ...

Matter of Henry Javier MENDOZA OSORIO

LAW OFFICES OF NORKA M.SCHELL, LLC

11 Broadway, Suite 615

New York, New York 10004

Tel(s). (212)564-1589

       (973)621-9300

Website: www.lawschell.com

Decided February 9, 2016 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent is a native and citizen of Ecuador and a lawful permanent resident of the United States. The record reflects that he was convicted on December 10, 2013, of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law. On the basis of that conviction, the Department of Homeland Security (“DHS”) charged the respondent with removability under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an alien convicted of a “crime of child abuse, child neglect, or child abandonment.” The Immigration Judge found that the respondent is removable as charged and that he did not seek any relief from removal. 

Martinez v. U.S. Att’y Gen., 413 F. App’x 163 (11th Cir. 2011). But see Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013). The alien in Florez, who was also convicted under section 260.10(1), conceded that our definition of the phrase “crime of child abuse” was sufficiently broad to encompass a violation of that section. Therefore the court did not reach the question whether such a violation is categorically a “crime of child abuse, child neglect, or child abandonment.” Florez v. Holder, 779 F.3d at 209−10. Because this issue has been raised by the respondent, we address it here. Section 260.10(1) of the New York Penal Law provides:

A person is guilty of endangering the welfare of a child when:

1. He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health . . . .

Although contained in a single sentence, section 260.10(1) is phrased in the disjunctive and defines two discrete offenses: (1) taking action that is likely to be harmful to a child’s welfare, and (2) allowing a child to work in a dangerous occupation. See Florez v. Holder, 779 F.3d at 210 (stating that section 260.10(1) “can be violated in two conceptually distinct ways”); United States v. Beardsley, 691 F.3d 252, 268 n.11 (2d Cir. 2012) (noting that “the statute does create two offenses”).

The respondent has not claimed that he was convicted of the second part of section 260.10(1) or specifically explained how conduct punished under that part of the statute would fall outside of our definition of a crime of child abuse. Furthermore, he has not cited to any reported decision where a defendant was convicted under that part of the statute, and we are unaware of any decisions that explicitly discuss this aspect of section 260.10(1). Under these circumstances, we are unpersuaded that the offense of directing a child to engage in an occupation that involves a substantial risk of injury or illness does not define a categorical crime of child abuse or neglect. We therefore focus our inquiry on the first offense in the statute. 

In employing the categorical approach to determine if a State crime is comparable to a removable offense under the Act, we look to whether the State statute defining the crime categorically fits within the Federal definition of the corresponding offense. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The respondent argues that the offense of endangering the welfare of a child under section 260.10(1) is not categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Act because the New York statute is broad that it encompasses conduct that falls outside of that phrase, as it was defined in Matter of Soram and Matter of Velazquez-Herrera. However, to establish that the New York offense is not a categorical crime of child abuse, the respondent must do more than merely invoke the statute’s breadth in general terms. He must show that there is a “realistic probability” that the statute is, in fact, applied to punish conduct that does not qualify as child abuse under the Act. See Moncrieffe v. Holder, 133 S. Ct. at 1684−85 (stating that the “focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense” and that “there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime’” (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007))). 

A conviction for endangering the welfare of a child under the first part of section 260.10(1) requires a showing that the defendant knew that his actions were likely to result in physical, mental, or moral harm to a child. People v. Portorreal, 939 N.Y.S.2d 805, 809 (N.Y. Crim. Ct. 2009). To act “knowingly” under New York law, the defendant must have been “aware” of the nature of his conduct and of the fact that his actions had the potential for harm. See People v. Johnson, 740 N.E.2d 1075, 1076 (N.Y. 2000); see also People v. Simmons, 635 N.Y.S.2d. 373 (N.Y. App. Div. 1995) (holding that it was error to convict based on what the defendant “should have known” because section 260.10(1) requires “actual knowledge”). There must also be proof that the harm was “likely to occur, and not merely possible.” People v. Hitchcock, 780 N.E.2d 181, 183 (N.Y. 2002). 

These elements—a knowing mental state coupled with an act or acts creating a likelihood of harm to a child—fit within our definition of a “crime of child abuse, child neglect, or child abandonment” in section 237(a)(2)(E)(i) of the Act. However, the respondent argues that the New York statute is overly broad because it proscribes a wide range of conduct that is not specifically delineated, claiming that it therefore criminalizes actions that were not contemplated to be child abuse or neglect under the Act. We disagree.

The respondent claims that various New York cases support his argument that section 260.10(1) criminalizes conduct that is not within our definition of child abuse because it does not constitute maltreatment of a child. He mentions leaving a child unattended for a short period, driving with a suspended license in the presence of a child, and committing petit larceny in the presence of a child, but he has not provided citations to any cases involving these circumstances. He did cite cases that he claims fall outside our definition, but none of them resulted in a successful prosecution because the defendant’s conduct did not constitute endangering the welfare of a child under the New York statute. Since there was no conviction in any of these cases, they are unpersuasive in establishing that there is a realistic probability that section 260.10(1) would be successfully applied to conduct outside our definition of child abuse.  

See Matter of Francisco-Alonzo, 26 I&N Dec. 594, 601 (BIA 2015) (finding neither support for the contention that the State statute “could be successfully applied to conduct” outside the Federal definition of a crime of violence nor evidence of “any such successful prosecutions”); Matter of Ferreira, 26 I&N Dec. 415, 420 (BIA 2014) (finding no support for the contention that the State statute was “actually used to successfully prosecute” offenses involving antique firearms).

The fact that there are numerous reported cases finding the offender’s conduct insufficient to support a conviction shows that the breadth of section 260.10(1) has significant limits. People v. Hitchcock, 780 N.E.2d 181, a case involving guns decided by the highest court of New York, illustrates that while section 260.10(1) potentially covers a broad range of conduct, acts that risk harm or actually result in harm to a child may still not meet the statute’s threshold requirement that the offender knowingly acted in a manner likely to be harmful to a child’s welfare. 5 The case involved two defendants, Hitchcock and Duenas, both of whom were charged with endangering the welfare of a child following accidents in which one child used the defendant’s gun to shoot another child. Hitchcock had 23 firearms in his home, including semiautomatic weapons and an assault rifle, most of which were openly accessible. At least one weapon was loaded, and ammunition for the others was nearby. Hitchcock testified that he had shown a 14-year-old living in his home how to load and shoot the guns and that he suspected they had been tampered with in his absence. The court took these facts into consideration in concluding that the evidence was legally sufficient to convict Hitchcock because it was reasonable for the jury to infer that he knowingly kept guns in a manner likely to be injurious to children living in or near his home. In contrast, Duenas had only one gun in his home and had made a significant effort to conceal it. There was no evidence that anyone else in the household knew about the gun, and Duenas was unaware that his younger brother had secretly seen him cleaning it in his bedroom. In these circumstances, the court found that the evidence was legally insufficient to conclude that Duenas was aware that his conduct would likely be injurious to a child. Thus, although both defendants possessed handguns that resulted in harm to a child, Duenas’ conduct did not meet the legal requirements for conviction under section 260.10(1). This case demonstrates that there are, in fact, significant limits to the sweep of the statute, contrary to the respondent’s assertion. Prior to our decision in Matter of Soram, the Second Circuit issued an unpublished opinion, noting that the statute was broad and remanding for us to clarify whether the minimal conduct encompassed by a conviction under section 260.10(1) constitutes a crime of child abuse or neglect. Guzman v. Holder, 340 F. App’x 679 (2d Cir. 2009). The court listed a number of New York cases, some of which the respondent has also cited. In our view, each of the cases cited in Guzman involved conduct that the defendant knew would pose a substantial risk of harm to a child in the totality of the circumstances and would therefore qualify as a crime of child abuse or neglect. See, e.g., People v. Manon, 640 N.Y.S.2d 318 (N.Y. App. Div. 1996) (sustaining the conviction of a mother who kept her infant son in extremely unsanitary conditions without necessary medical attention, which resulted in his death from malnutrition and dehydration); People v. Afia, 843 N.Y.S.2d 906 (N.Y. Crim. Ct. 2007) (convicting a school minibus attendant who was responsible for the safety of special needs children and knowingly failed to check for sleeping students, as instructed, which left a 7-year-old passenger alone on the bus for several hours in an unfamiliar location miles away from school).  

The respondent raises issues that were noted in Guzman, arguing that because section 260.10(1) does not require that there be any actual harm to a child or that the conduct be directed toward the child, the statute prohibits conduct that is broader than the Federal crime of child abuse defined by our precedent decisions. This argument is unavailing, however, because we addressed the question of harm subsequent to Guzman and held that our definition of child abuse is not limited to offenses that require proof of harm or injury to the child. Matter of Soram, 25 I&N Dec. at 381. Furthermore, the Second Circuit has approved our conclusion in this regard. Florez v. Holder, 779 F.3d at 212.

In Florez, the court noted that Guzman had questioned whether our definition of child abuse was broad enough to include child endangerment statutes like section 260.10(1), which criminalize conduct that did not actually harm a child. Id. at 211. The court observed that this definition is intentionally expansive, “consistent with the legislative purpose behind” section 237(a)(2)(E)(i) of the Act. Id. at 213. However, it explained that under Soram, the definition is not unlimited because “a state child-endangerment statute qualifies as a ‘crime of child abuse’ under the [Act] only if it requires, as an element of the crime, a sufficiently high risk of harm to a child.” Id. at 212. The court upheld our definition because it includes the required level of risk of harm to a child, recognizing that this limitation ensures that our treatment of such statutes “remains within the realm of reason.” Id.

Although Florez did not specifically address the issue of conduct that was not directed at a child, we have reviewed New York cases that involved defendants who were convicted under section 260.10(1) for committing acts that were not directed at a child. See, e.g., People v. Johnson, 740 N.E.2d at 1075−76 (children witnessed the defendant knock their mother down in the street and drag her home, then listened to him beat and yell at her for 10 hours while she screamed); People v. Meseck, 860 N.Y.S.2d 263 (N.Y. App. Div. 2008) (children witnessed the defendant confine their mother for 4 hours while he yelled at her, called her names, and threatened to kill her with a baseball bat); People v. Spickerman, 762 N.Y.S.2d 470 (N.Y. App. Div. 2003) (children witnessed the defendant beat their mother, breaking her jaw and rupturing her eardrums); People v. Brooks, 705 N.Y.S.2d 349 (N.Y. App. Div. 2000) (defendant stabbed his estranged wife in the presence of their 3-year old son); People v. Parr, 548 N.Y.S.2d 121 (N.Y. App. Div. 1989) (defendant forcibly sodomized a 5-year-old child’s mother in the child’s presence). In these cases the defendant was aware of the presence of the child when he committed severe acts of violence against the child’s mother. Witnessing such acts of domestic violence is likely to cause serious psychological and developmental damage to children, even if they are not themselves subjected to physical abuse. People v. Johnson, 740 N.E.2d at 1077. Therefore, even though the defendant’s conduct was not directed at a child, we would consider it to be child abuse within our definition, given the high risk of harm to the childWe recognize that there are child endangerment statutes that do not require a sufficiently high risk of harm to a child to meet the definition of child abuse, neglect, or abandonment under the Act. For example, the child endangerment statute at section 273a(b) of the California Penal Code criminalizes conduct that places a child “in a situation where his or her person or health may be endangered.” (Emphasis added.) In Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), the Ninth Circuit held that this statute did not categorically define a “crime of child abuse” within the meaning of the Act. The court observed that the statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.” Id. at 1037−38. In this regard, the court cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.” Id. Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. A conviction under section 260.10(1) at issue here requires that the defendant “knowingly engaged in conduct likely to be injurious to a child.” People v. Hitchcock, 780 N.E.2d at 184. In reviewing this statute, we have considered the totality of the circumstances presented in each case, rather than viewing certain facts in isolation.7 The New York cases that resulted in a successful prosecution under the statute are those where the defendant had an awareness that his conduct posed a sufficiently high risk of harm to a child to qualify the offense as a crime of child abuse or neglect under section 237(a)(2)(E)(i) of the Act. Thus, while there are child endangerment statutes that do not meet our definition, we conclude that section 260.10(1) is not one of them.

To be continued.

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DEFERRED ACTION

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: DEFERRED ACTION: LAW OFFICES OF NORKA  M. SCHELL, LLC 11 Broadway, Suite 615 New York, New York 10004 Tel. (212)564-1589/ (973)621-9300 Website: ...

DEFERRED ACTION

LAW OFFICES OF NORKA  M. SCHELL, LLC

11 Broadway, Suite 615

New York, New York 10004

Tel. (212)564-1589/ (973)621-9300

Website: www.lawschell.com 

The U.S. Department of Homeland Security ("DHS") - U.S. Citizenship and Immigration Services ('USCIS") does bring removal proceedings against every alien whom it suspects of being deportable. For one thin, it recognizes that there are certain cases in which extraordinary sympathetic factors would make removal unconscionable. For another, the DHS could not remove all deportable alien even if it wanted to. Removal proceedings require apprehension, investigation, proceedings, possible detentions, prosecution, adjudication, removal, and recording-keeping. Like any other government agency, the DHS has limited resources. It has to decide how it can most efficiently allocate those resources (a) between law enforcement functions and other functions, and (b) within law enforcement.

For some time the DHS policy has been to refrain from initiating removal proceedings in certain unusually compassionate cases.That policy has been given different names over the years: "prosecutorial discretion", "nonpriority status", and most commonly today, "deferred action". Whatever the name, the theory has been that the case is simply put on the back burner. Technically the DHS remains free to proceed against the alien in the future if its workload or its priority change, realistically, since the actual reason for holding back is the presence of exceptionally sympathetic factor, relief will typically be permanent unless those individual factors change. 

Matter of Alcibiades Antonio PENA, 26 I&N Dec. 613 (BIA 2015)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the INA, if he or she does not fall within any of the exception in section 101(a)(13)(C) of the Act. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) distinguished. 

Matter of Miguel Angel CASTRO-LOPEZ

U.S. Department of Justice 
Executive Offices of Immigration Review 
Board of Immigration Appeal

Cite as 26 I&N Dec. 693 (BIA 2015) 

Interim Decision #3854 693

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).

H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016

          H-2B Employers Urged to Identify Returning Workers when Filing Petitions

Effective December 18, 2015, H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas. See Immigration and Nationality Act (INA) §214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by Consolidated Appropriations Act of 2016 (Public Law 114-113).

A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:

• In general, if you (the employer) submit a petition requesting an employment start date in FY 2016 (from October 1, 2015 – September 30, 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between October 1, 2012, and September 30, 2015.
• If the prospective worker is in the United States in H-2B status, and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and you would not need to request that the person be classified as a returning worker.
• Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.

Under this legislation, the returning worker program only applies to petitions pending or approved on or after December 18, 2015, requesting named H-2B workers with an employment start date beginning in FY 2016.

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: FEBRUARY 2016 VISA BULLETIN

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: FEBRUARY 2016 VISA BULLETIN: LAW OFFICES OF NORKA M. SCHELL, LLC 11 Broadway, Suite 615 New York, NY 10004 Tel. (212)564-1589 / (973)621-9300 Website: www....

FEBRUARY 2016 VISA BULLETIN

LAW OFFICES OF NORKA M. SCHELL, LLC

11 Broadway, Suite 615

New York, NY 10004

Tel. (212)564-1589 / (973)621-9300

Website: www.lawschell.com

This bulletin summarizes the availability of immigrant numbers during February for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

A.  APPLICATION FINAL ACTION DATES FOR
     FAMILY-SPONSORED PREFERENCE CASES

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 authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	08JUL08	08JUL08	08JUL08	01JAN95	01NOV03
F2A	01SEP14	01SEP14	01SEP14	08JUN14	01SEP14
F2B	15MAY09	15MAY09	15MAY09	08SEP95	01FEB05
F3	01OCT04	01OCT04	01OCT04	08SEP94	22NOV93
F4	08JUN03	08JUN03	08JUN03	01APR97	08AUG92

*NOTE: For February, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority datesearlier than 08JUN14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08JUN14 and earlier than 01SEP14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS. 

Family- Sponsored	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01OCT09	01OCT09	01OCT09	01APR95	01SEP05
F2A	15JUN15	15JUN15	15JUN15	15JUN15	15JUN15
F2B	15DEC10	15DEC10	15DEC10	01APR96	01MAY05
F3	01AUG05	01AUG05	01AUG05	01MAY95	01AUG95
F4	01MAY04	01MAY04	01MAY04	01JUN98	01JAN93

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A.  APPLICATION FINAL ACTION DATES FOR
     EMPLOYMENT-BASED PREFERENCE CASES

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 authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlierthan the cut-off date listed below.)

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01MAR12	01AUG08	C	C
3rd	01OCT15	01OCT12	15JUN04	01OCT15	08JAN08
Other Workers	01OCT15	22DEC06	15JUN04	01OCT15	08JAN08
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	15JAN14	C	C	C
5th Regional Center (I5 and R5)	C	15JAN14	C	C	C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01JAN16	01OCT13	01JUL05	01JAN16	01JAN10
Other Workers	01JAN16	01JAN07	01JUL05	01JAN16	01JAN10
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	01MAY15	C	C	C
5th Regional Center (I5 and R5)	C	01MAY15	C	C	C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month*.

* Information extracted from U.S. Visa Department of State at www.travel.state.gov