Matter of Jaime Enrique VALENZUELA-FELI

Posted by Attorney Norka M. Schell 
www.lawschell.com

Decided November 16, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

When the Department of Homeland Security (DHS) paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings. 

Jaime Enrique is a native and citizen of Mexico and a lawful permanent resident (LPR) of the United States. In June 2009, Jaime Enrique was indicted by a grand jury on charges including bulk cash smuggling in violation of 31 U.S.C.§ 5332 (2006). In August 2009, Jaime Enrique travel outside the United States. Upon returning from his trip, he was paroled into the United States for prosecution. In July 2010, Jaime Enrique was convicted of that offense in the United States District Court for the Central District of California and was sentenced to 27 months' imprisonment. 


On May 23, 2011, the DHS served Jaime Enrique with a notice to appear (NTA), charging him as inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien who has been convicted  of a crime involving moral turpitude. On July 11, the DHS lodged an additional charge that Jaime Enrique is inadmissible under section 212(a)(2)(A)(i)(II) of the INA as an alien convicted of a controlled substance violation, based on his July 8, 1991, conviction for possession for sale of cocaine in California. 

The Immigration Judge (IJ) found that "the proper time for the government to make its determination as to whether Jaime Enrique was an arriving alien was at the time he sought entry into the United States." In this regard the IJ noted that Jaime Enrique had not then been convicted and that the DHS had, at most, probable cause from an outstanding arrest warrant that he had committed a crime involving moral turpitude based on cash smuggling. Since DHS was likewise unaware of Jaime Enrique's 1991 drug conviction at that time, the IJ concluded that it did not establish by clear and convincing evidence that  LPR Jaime Enrique was seeking admission. IJ therefore ordered that the proceeding be terminated. 

IMMIGRATION AND POLICY: Matter of Jorge Isaac SANCHEZ-LOPEZ

IMMIGRATION AND POLICY: Matter of Jorge Isaac SANCHEZ-LOPEZ: Posted by Attorney Norka M. Schell www.lawschell.com Statutory Provision: Any alien who at any time after admission is convicted of a cri...

Matter of Jorge Isaac SANCHEZ-LOPEZ

Posted by Attorney Norka M. Schell
www.lawschell.com

Statutory Provision: Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable pursuant to section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA).

Pursuant to the California Penal Code (CPC), the "offense of stalking" is a crime of stalking under the INA section 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (2006).

Jorge Isaac Sanchez-Lopez is a native and citizen of Peru who was admitted to the United States on May 6, 1993, as a lawful permanent resident. On April 19, 2011, he was convicted of stalking in violation of section 646.9(b) of the CPC, for which he was sentenced to a period of 2 years in prison. The Immigration Judge concluded that Jorge Isaac Sanchez-Lopez is removable on the basis of that conviction. He also denied his application for cancellation of removal under section 240A(a) of the Act as a matter of discretion. The Jorge Isaac Sanchez-Lopez has appealed both of these determinations.

In a decision dated March 21, 2012, an Immigration Judge found
Jorge Isaac Sanchez-Lopez removable as an alien convicted of a crime of stalking under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), and denied his application for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006). Jorge Isaac Sanchez-Lopez has appeal from the decision. The appeal will be dismissed.

Zhing v. Holder

Zheng, born in1984 in the People’s Republic of China, arrived in the U.S. illegally in 2001. After receiving a Notice to Appear, she filed applications for political asylum, withholding of removal, and protection under the Convention Against Torture, claiming persecution because of her practice of Falun Gong. An IJ rejected Zheng’s applications because her testimony was “rather inconsistent and almost completely unsubstantiated.” The Board affirmed and the Seventh Circuit denied an appeal. Zheng remained in the U.S. and, in 2010, married Jiang, with whom she has two children. In 2011, Zheng sought to reopen proceedings with the Board, based on the birth of her two children and increased enforcement of China’s family planning policy. The Department of Homeland Security opposed Zheng’s motion, arguing that it was not filed within 90 days of entry of a final administrative order of removal (8 U.S.C. 1229a(c)(7)(C)(i)) and was based on changed personal circumstances rather than a change in country conditions. The Board denied the motion. The Seventh Circuit denied review. 

United States v. Oseguera-Madrigal

Defendant appealed his conviction and sentence on a conditional guilty plea for being an alien found in the United States following deportation. The court affirmed the conviction and sentence, holding that the BIA did not err in finding defendant removable based on his conviction for use of drug paraphernalia, which was a conviction "relating to a controlled substance" under 8 U.S.C. 1182(a)(2)(A)(i)(II). The court held that the IJ did not violate due process by failing to inform defendant of the possibility of relief through a waiver of inadmissibility under section 1182(h). The court rejected defendant's contention that the district court abused its discretion and imposed a substantively unreasonable sentence.

IMMIGRATION AND POLICY: STEM Bill Is On The U.S. House of Representative's...

IMMIGRATION AND POLICY: STEM Bill Is On The U.S. House of Representative's...: The bill is a modified version of H.R. 6429, which eliminates the visa lottery by reallocating the 55,000 green cards available under the p...

STEM Bill Is On The U.S. House of Representative's Calender For This Week

The bill is a modified version of H.R. 6429, which eliminates the visa lottery by reallocating the 55,000 green cards available under the program to two new employment-based visa categories, the EB-6 and EB-7. 

The proposed EB-6 category is designed to benefit foreign students holding a PhD in a STEM field (Science, Technology, Engineering, and Mathematics) from a U.S. university. The proposed EB-7 category is designed to benefit foreign students holding both a Master's and baccalaureate degree in a STEM field from a U.S. university. Those with Master's degrees would be granted a green card only after all qualifying PhD petitions have been granted. 

Under this bill, employers who petition to hire these graduates must receive labor certification to help protect American workers. While the bill originally required EB-6 and EB-7 recipients to work for their petitioning employer for an aggregate of five-years, the modified version contains no such requirement. (See H.R. 6429 at §2) Moreover, unlike the original version of the bill, the modified version of H.R. 6429 allows unused green cards under the new EB-6 and EB-7 categories to be rolled over through 2016. As introduced, the bill only provided for the rollover of unused green cards under the proposal through 2014. 

Also among the changes in the modified version is the elimination of a provision prohibiting universities from providing any commission, bonus, or other incentive to a recruiter based on securing enrollments or financial aid of nonimmigrant students. At the same time, the legislation creates a new nonimmigrant student visa category specifically for foreign students seeking to study in a STEM field who may potentially seek an EB-6 or EB-7 green card in the future. Combined, these provisions could hurt American students who intend to study in STEM fields, as they could increase competition for admission, especially since universities benefit significantly from admitting foreign students who pay full tuition. 

The modified Bill includes the V nonimmigrant visa program to allow the spouses and unmarried children of lawful permanent residents to enter the country while they wait for a green card.  The V-visa program granted spouses and unmarried children of green card holders who petitioned to come to the U.S. by December 2000 a V-visa if their application had been pending for more than three years. Because the V-visa applied only to those who petitioned for a green card by 2000, the program essentially sunset after 2003. The new version of H.R. 6429, however, would amend the V-visa program to allow all spouses and children of a green card holder who petition for lawful permanent residence pursuant to such status to wait in the U.S. to receive their green card after spending just one-year on the green card waiting list. While this new provision would prohibit V-visa holders from working in the U.S., it will expedite the immigration process significantly.

U.S. House of Representative will vote on the modified STEAM Bill no sooner than Wednesday.

 

IMMIGRATION AND POLICY: Visa Bulletin for December 2012

IMMIGRATION AND POLICY: Visa Bulletin for December 2012: STATUTORY NUMBERS This bulletin summarizes the availability of immigrant numbers for the Family-Based Preferences and for the Employm...

Visa Bulletin for December 2012

STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers for the Family-Based Preferences and for the Employment-Based Preferences during the month of December. 

FAMILY-BASED PREFERENCES 

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01DEC05	01DEC05	01DEC05	01JUL93	08OCT97
F2A	22AUG10	22AUG10	22AUG10	01AUG10	22AUG10
F2B	15NOV04	15NOV04	15NOV04	01NOV92	22MAR02
F3	08JUN02	08JUN02	08JUN02	01MAR93	01AUG92
F4	01APR01	01APR01	01APR01	22JUL96	22MAR89

EMPLOYMENT-BASED PREFERENCES

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22OCT07	01SEP04	C	C
3rd	22DEC06	01JUL06	01NOV02	22DEC06	15AUG06
Other Workers	22DEC06	01JUL03	01NOV02	22DEC06	15AUG06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

IMMIGRATION AND POLICY: President Obama Remains Steadfast In His Pursuit o...

IMMIGRATION AND POLICY: President Obama Remains Steadfast In His Pursuit o...: By the President of the United States of America  A Proclamation  " Our Nation's story would not be possible without generations of His...

President Obama Remains Steadfast In His Pursuit of Meaningful Immigration Reform On His Second Term

By the President of the United States of America 

A Proclamation " Our Nation's story would not be possible without generations of Hispanics who have shaped and strengthened the fabric of our Union. They have enriched every aspect of our national identity with traditions that stretch across centuries and reflect the many ancestries that comprise the Hispanic community. This month, we celebrate this rich heritage and reflect on the invaluable contributions Hispanics have made to America.

Hispanics have helped shape our communities and expand our country, from laboratories and industry to board rooms and classrooms. They have led movements that pushed our country closer to realizing the democratic ideals of America's founding documents, and they have served courageously as members of our Armed Forces to defend those ideals at home and abroad. Hispanics also serve as leaders throughout the public sector, working at the highest levels of our government and serving on our highest courts.

As we celebrate these hard-fought achievements, we must also remember there is more work to be done to widen the circle of opportunity for the Hispanic community and keep the American dream within reach for all who seek it. From promoting job creation and ensuring Hispanics are represented in the Federal workforce to reshaping our education system to meet the demands of the 21st century, my Administration has built ladders of opportunity. The Department of Homeland Security has lifted the shadow of deportation from talented and patriotic young people who were brought to America as children, giving them a degree of relief so they can continue contributing to our society, and we remain steadfast in our pursuit of meaningful legislative immigration reform.  

Whether we trace our roots to those who came here on the Mayflower, who settled the Southwest centuries ago, or who joined the American family more recently, we share a common belief in the enduring promise of America_the promise that regardless of where we come from or what we look like, each of us can make it if we try. During National Hispanic Heritage Month, as we celebrate the successes of the Hispanic community, let us reaffirm our commitment to extending that promise to all Americans.

To honor the achievements of Hispanics in America, the Congress by Public Law 100-402, as amended, has authorized and requested the President to issue annually a proclamation designating September 15 through October 15 as “National Hispanic Heritage Month.” Proclamation dated on Sept. 14, 2012.

IMMIGRATION AND POLICY: USCIS Warns of Telephone Scam

IMMIGRATION AND POLICY: USCIS Warns of Telephone Scam: U.S. Citizenship and Immigration Services (USCIS) has warned that it recently learned of a new telephone scam where individuals pretend t...

USCIS Warns of Telephone Scam

U.S. Citizenship and Immigration Services (USCIS) has warned that it recently learned of a new telephone scam where individuals pretend to be USCIS employees and aggressively try to get individuals to sign up for a training course led by government officials. USCIS advises that these scammers pressure people to pay for this course and ask them to disclose financial information (i.e., money order, credit card, and bank account details) over the phone. USCIS stresses that it will never call individuals and ask for money for training, products, or forms and that people should not give important personal or financial information over the phone to anyone they do not know or who contacts them unexpectedly. USCIS further stresses that official government websites end in dot gov (.gov), not dot com (.com).www.uscis.gov/avoidscams

IMMIGRATION AND POLICY: Visa Bulletin For November 2012

IMMIGRATION AND POLICY: Visa Bulletin For November 2012: Posted by Norka M. Schell, New York Immigration Attorney Law Offices of Norka M. Schell, LLC EMPLOYMENT-BASED PREFERENCES First :   ...

Visa Bulletin For November 2012

Posted by Norka M. Schell, New York Immigration Attorney
Law Offices of Norka M. Schell, LLC
http://www.lawschell.com/News---Resources.html


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.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01SEP07	01SEP04	C	C
3rd	22NOV06	15APR06	22OCT02	22NOV06	08AUG06
Other Workers	22NOV06	01JUL03	22OCT02	22NOV06	08AUG06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

FAMILY-BASED PREFERENCES 

First:  (F1) Unmarried Sons and Daughters of U.S. 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, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit.

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third:  (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Family-Sponsored	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01NOV05	01NOV05	01NOV05	22JUN93	01JUL97
F2A	15JUL10	15JUL10	15JUL10	22JUN10	15JUL10
F2B	08OCT04	08OCT04	08OCT04	15OCT92	15FEB02
F3	01JUN02	01JUN02	01JUN02	15FEB93	22JUL92
F4	22MAR01	15MAR01	22MAR01	08JUL96	01MAR89

WHAT ARE THE BENEFITS AND RESPONSIBILITIES OF CITIZENSHIP?

Posted by NY Immigration Attorney Norka M. Schell

Law Offices of Norka M. Schell, LLC www.lawschell.com

United States Department of Justice

Immigration & Naturalization Service

A Guide to Naturalization

 

Benefits

 

The Constitution and laws of the United States give many rights to both citizens and non-citizens living in the United States. However, some rights are only for citizens, such as:

• Voting. Only U.S. citizens can vote in Federal elections. Most States also restrict the right to vote, in most elections, to U.S. citizens.

• Bringing family members to the United States. Citizens generally get priority when petitioning to bring family members permanently to this country.

• Obtaining citizenship for children born abroad. In most cases, a child born abroad to a U.S. citizen is automatically a U.S. citizen.

• Traveling with a U.S. passport. A U.S. passport allows you to get assistance from the U.S. government when overseas.

• Becoming eligible for Federal jobs. Most jobs with government agencies require U.S. citizenship.

• Becoming an elected official. Many elected offices in this country require U.S. citizenship.

• Showing your patriotism. In addition, becoming a U.S. citizen is a way to demonstrate your commitment to your new country.

The above list does not include all the benefits of citizenship, only some of the more important ones.

 

Responsibilities

 

To become a U.S. citizen you must take the Oath of Allegiance. The oath includes several promises you make when you become a U.S. citizen, including promises to:

• Give up all prior allegiance to any other nation or sovereignty;

• Swear allegiance to the United States;

• Support and defend the Constitution and the laws of the United States; and

• Serve the country when required.

U.S. citizens have many responsibilities other than the ones mentioned in the Oath. Citizens have a responsibility to participate in the political process by registering and voting in elections. Serving on a jury is another responsibility of citizenship. Finally, America becomes stronger when all of its citizens respect the different opinions, cultures, ethnic groups, and religions found in this country. Tolerance for differences is also a responsibility of citizenship.

When you decide to become a U.S. citizen, you should be willing to fulfill the responsibilities of citizenship. We hope you will honor and respect the freedoms and opportunities citizenship gives you. At the same time, we hope you become an active member of your community. It is by participating in your community that you truly become an American. 

For information on how to become a U.S. citizen, please contact our offices at (212)564-1589. 

NY Law Offices of Norka M. Schell, LLC IMMIGRATION AND POLICY: Gonzalez v. Arizona

IMMIGRATION AND POLICY: Gonzalez v. Arizona: Posted by NY Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC www.lawschell.com Arizona residents and Indian tribes ...

Gonzalez v. Arizona

Posted by NY Attorney Norka M. Schell

Law Offices of Norka M. Schell, LLC

www.lawschell.com

Arizona residents and Indian tribes filed actions challenging validity of proposition requiring prospective voters in Arizona to present documentary proof of citizenship in order to register to vote and requiring registered voters to present proof of identification in order to cast ballot at polls. Actions were consolidated. The United States District Court for the District of Arizona, Roslyn O. Silver, J., entered judgment in state's favor, and plaintiffs appealed.

Holding: 

The Court of Appeals held that: (1) Arizona's requirement that prospective voters provide documentary proof of citizenship was superseded by National Voter Registration Act (NVRA); (2) law of the case doctrine did not bar panel from reconsidering issue following remand from earlier decision; (3) requirement that voters provide proof of identification before voting at polls did not violate Voting Rights Act (VRA); and (4) requirement that voters show identification at polls was not poll tax.

Circuit Judge Ikuta wrote the Opinion:

" Proposition 200 requires prospective voters in Arizona to present documentary proof of citizenship in order to register to vote,  Ariz. Rev. Stat. Sections 16-152, 16-166,  and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. Sec. 16-579. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. Sec. 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. Sec. 1973gg et seq. We hold that the NVRA supersedes Proposition 200's voter registration procedures, and that Arizona's documentary proof of citizenship requirement for registration is therefore invalid. We reject the remainder of Appellants' arguments". Affirmed in part and reversed in part.

IMMIGRATION AND POLICY: USCIS Launches Spanish Version of I-9 Central

IMMIGRATION AND POLICY: USCIS Launches Spanish Version of I-9 Central: Posted by: NY Immigration Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC www.lawschell.com As you all already know,  ...

USCIS Launches Spanish Version of I-9 Central

Posted by: NY Immigration Attorney Norka M. Schell

Law Offices of Norka M. Schell, LLC

www.lawschell.com

As you all already know,  in May 2011 the U.S. Citizenship and Immigration Service (USCIS) launched the I-9 Central, a free online resource center that gives employers and employees simple one-click access to resources, tips, and guidance to properly complete Form I-9, Employment Eligibility Verification, and better understand the Form I-9 process.  At the  I-9 Central, employers and employees can find information on employer and employee rights and responsibilities, step-by-step instructions for completing the form, and acceptable documents for establishing identity and employment authorization. 

Now the USCIS launched the Spanish version of  the Central I-9 and it is available at www.uscis.gov/I-9Central/Espanol. At the site, users will find the Handbook for Employers: Instructions for Completing Form I-9 (M-274), Employee's Rights, How to Prevent Discrimination and E-Verify Self Check (a free service that allows workers and job seekers in the U.S. to check their own employment eligibility status online).

If you have questions or need legal assistance with regard employment issues, please contact our office at call me at (212)564-1589. 

IMMIGRATION AND POLICY: Unfair Immigration Related Employment Practices

IMMIGRATION AND POLICY: Unfair Immigration Related Employment Practices: Posted by the NY Immigration Attorney Norka M. Schell NY Law Offices of Norka M. Schell, LLC www.lawchell.com An agreement was reach...

Unfair Immigration Related Employment Practices

Posted by the NY Immigration Attorney Norka M. Schell

NY Law Offices of Norka M. Schell, LLC

www.lawchell.com

An agreement was reached between the Department of Justice (DOJ), Tuscany Hotel and Casino LLC (Tuscany) in Las Vegas, Nevada.  Settling a lawsuit alleging that the company violated INA § 274 B, which bars unfair immigration-related employment practices. 

The DOJ, in a case filed in May 2012, alleged that Tuscany treated noncitizens differently from U.S. citizens during the employment eligibility verification and reverification process. The complaint alleged that Tuscany required noncitizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process and then used the documents or information that it gathered to impose improper document requests on noncitizens during the reverification process as a condition of continued employment. 

The complaint further alleged that Tuscany subjected noncitizen employees' documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.

Under the terms of the settlement agreement, Tuscany will pay $49,000 in civil penalties to the U.S. government and full back pay to a victim. Tuscany also agreed to: 

(1) implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status, 

(2) conduct training for its human resources staff on their responsibility to avoid discrimination in the employment eligibility verification process, and 

(3) be subject to reporting and monitoring requirements.

For more information on above topic, please contact our New York Office at (212) 564-1589.

IMMIGRATION AND POLICY: Employee Rights Tookkit

IMMIGRATION AND POLICY: Employee Rights Tookkit: Posted by the NY Immigration Attorney Norka M. Schell Employee Rights Toolkit U.S. Citizenship and Immigration Services (USCIS) has an...

Employee Rights Tookkit

Posted by the NY Immigration Attorney Norka M. Schell

Employee Rights Toolkit

U.S. Citizenship and Immigration Services (USCIS) has announced that it has released a new online “Employee Rights Toolkit” to increase awareness about employee rights during the employment eligibility verification process. This toolkit, designed for workers, worker advocates, and other stakeholders, contains a variety of educational materials, such as E-Verify employee rights videos, informative fliers, brochures, and posters. It also contains information about USCIS multilingual engagement opportunities and guidance on avoiding immigration scams or the unauthorized practice of immigration law and videos, audios, and handouts about Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status. 

Most of the materials are available in English and Spanish. The entire toolkit may be viewed online at http://1.usa.gov/PnX3XM 

IMMIGRATION AND POLICY: Visa Bulletin for November 2012

IMMIGRATION AND POLICY: Visa Bulletin for November 2012: Posted by the New York Immigration Attorney Norka M. Schell NY Law Offices of Norka M. Schell, LLC www.lawschell.com             ...

Visa Bulletin for November 2012

Posted by the New York Immigration Attorney Norka M. Schell
NY Law Offices of Norka M. Schell, LLC
www.lawschell.com

                        Visa Bulletin for November 2012

Family Priority Date 

F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22JUN10.

 F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUN10 and earlier than 15JUL10. 

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.

Employment Preference Categories 

The Employment First Preference category remained current for all chargeability areas. 

The Second Preference cutoff for all areas except China mainland-born and India are now current. The cut-off for China mainland-born advanced six weeks to September 1, 2007. The cut-off for India remained at September 1, 2004.

The Employment Third Preference category for Mexico and Worldwide advanced one month to stand at November 22, 2006. The cut-off for the Philippines advanced one week to August 8, 2006. The cutoff date for India also advanced one week to stand at October 22, 2002. The cutoff for mainland-born China advanced 10 weeks to April 15, 2006. For the Third Preference Other Workers category, the Worldwide and Mexico dates advanced one month to November 22, 2006. The Philippines cutoff date advanced one week to August 8, 2006. China mainland-born advanced over one week to stand at July 1, 2003. The cutoff date for India advanced one week to October 22, 2002.

The Fourth Preference categories are now all current as is the Fifth Preference. 

Important Note:

Immigrant visa numbers in the diversity visa (DV) category are now available to qualified DV-2013 applicants chargeable to all regions and eligible countries as follows (visas are available only for applicants with DV lottery rank numbers below the cutoff number): Africa: 13,900, except Egypt: 6,600, Ethiopia: 9,100, and Nigeria: 8,500; Asia: 2,350; Europe: 7,000; North America (Bahamas): 2; Oceania: 400; South America and the Caribbean: 500. 

For  more information please view our website news and resources or contact the New York Law Offices of Norka M. Schell, LLC at (212) 564-1589. 

IMMIGRATION AND POLICY: Designation of Military Physicians as Civil Surgeo...

IMMIGRATION AND POLICY: Designation of Military Physicians as Civil Surgeo...: Posted by Norka M. Schell, Esquire www.lawschell.com U.S. Department of Homeland Security U.S. Citizenship and Immigration Services INS ...

Designation of Military Physicians as Civil Surgeons for Members and Veterans of the Armed Forces and Eligible Dependents

Posted by Norka M. Schell, Esquire
www.lawschell.com

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
INS Policy and Procedural Memoranda

Policy Memorandum 

SUBJECT: Designation of Military Physicians as Civil Surgeons for Members and Veterans of the Armed Forces and Eligible Dependents Dated September 26, 2012

 Purpose 

 *1 The purpose of this policy memorandum (PM) is to grant military physicians a blanket designation as civil surgeons to facilitate the medical exam required for members and veterans of the Armed Forces and certain eligible dependents. This blanket designation will assist members and veterans of the Armed Forces and their eligible dependents in receiving immigration medical examinations in a timely fashion.

 Scope

 Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees. Authority Section 232(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1222(b) 8 CFR 232.2(b) 42 CFR 34.2(c).

Background INA section 232 requires arriving aliens to be examined by medical officers of the United States Public Health Services (USPHS). If medical officers of USPHS are not available, USCIS may designate civil surgeons to perform these testing requirements. Currently, under 8 CFR 232.2(b), civil surgeons are designated by the District Directors. According to 8 CFR 232.2(b), physicians qualify for civil surgeon designation if they are licensed physicians and if they have no less than 4 years of professional experience. Current guidance in Adjudicator's Field Manual(AFM) Chapter 83.4(a)(2) specifies that “licensed physicians” are physicians licensed to practice medicine in the state where they render medical services. This licensing requirement may discourage medical officers of the Armed Forces (military physicians) from becoming designated civil surgeons.

As a result, Armed Forces members and their dependents must pay for the immigration medical examination, even though the services could easily be provided by these military physicians at no cost. Additionally, the logistics to arrange for the medical examination by a non-military designated civil surgeon may prove burdensome to the military member and his or her dependent, and distract from a military member's readiness.

 Policy

 To ease difficulties encountered by physicians and applicants in the military, USCIS is issuing a blanket civil surgeon designation to qualifying military physicians to permit them to perform the immigration medical examination and complete the Report of Medical Examination and Vaccination Record, Form I-693, for eligible members and veterans of the Armed Forces and their dependents.

Participation in this blanket civil surgeon designation is entirely voluntary and at the discretion of each military medical facility. This blanket designation only applies to military physicians who:

 • Meet the professional qualifications of a civil surgeon, as described in AFM Chapter 83.4(a)(2), except that the physician may be licensed in any state, and is not required to be licensed in the state in which the physician is performing the immigration medical examination;

• Are employed by DoD (either as Armed Forces physicians or as civilian physicians) or are civilian contract providers; and

 • Are authorized to provide medical services at an MTF for Armed Forces personnel, veterans, and dependents that is located within the United States.

*2 Neither the medical facility nor the physician who qualifies for and wishes to participate in the blanket designation needs to obtain approval from USCIS prior to performing immigration medical examinations for Armed Forces personnel, veterans, and dependents at an MTF. However, military physicians must review and be familiar with the Centers for Disease Control and Prevention's (CDC's) Technical Instructions for the Medical Examination of Aliens in the United States (Technical Instructions) before they can begin performing immigration medical examinations. They must comply with the Technical Instructions in completing all immigration medical examinations.

Pursuant to the understanding reached between USCIS and the CDC, military physicians who qualify under this blanket civil surgeon designation may perform the entire immigration medical examination as long as the exam is conducted in the United States on the premises of an MTF and conducted for an Armed Forces member, veteran, or dependent who is eligible to receive medical care at that MTF. Military physicians must apply for civil surgeon designation under the standard designation process, as outlined in AFM Chapter 83.4(a)(4), if they wish to complete immigration medical examinations:

 • In a U.S. location other than on the premises of an MTF; or
 • For individuals other than those Armed Forces members, veterans, or dependents who are authorized to receive medical services at an MTF. Armed Forces members, veterans, and dependents will need to visit a physician designated as a civil surgeon through USCIS's standard application process if they:
 • Prefer to have the immigration medical examination performed by a physician who does not qualify under this blanket designation for military physicians;
 • Prefer to have the immigration medical examination performed in a U.S. location other than at the MTF at which they are authorized to receive medical services; or
 • Do not have access to a military physician who is performing immigration medical examinations under this blanket designation. Military physicians operating under the blanket civil surgeon designation must record the results of the immigration medical examination on the Form I-693 according to the standard procedures all civil surgeons are required to follow. In accordance with the agreements reached with the CDC, a military physician operating under the blanket civil surgeon designation is required to certify the Form I-693 by providing both of the following on the form: 
• The blanket designated civil surgeon's signature on the Form I-693. The signature may be the original (handwritten) or stamped signature. Nurses or other health care professionals may, but are not required to, co-sign the Form I-693. However, a form that has been signed only by a registered nurse, physician's assistant, or other medical professional who is not a licensed physician is not sufficient. USCIS will send the applicant a Request for Evidence (RFE) for corrective action if the Form I-693 was not signed by a licensed physician who qualifies as a civil surgeon under this blanket designation.

*3  The official stamp or raised seal of the MTF. The signed Form I-693 must be placed in a sealed envelope, according to the instructions listed on the form. Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. 

Contact Information Questions or suggestions regarding this PM should be directed through appropriate channels to the Office of Policy and Strategy, Residence and Naturalization Division.

IMMIGRATION AND POLICY: UNDERSTANDING THE VISA BULLETIN

IMMIGRATION AND POLICY: UNDERSTANDING THE VISA BULLETIN: By Attorney Norka M. Schell Law Offices of Norka M. Schell, LLC How are are visa numbers allocated? Do you read a Visa Bulletin?  Takin...

UNDERSTANDING THE VISA BULLETIN

By Attorney Norka M. Schell
Law Offices of Norka M. Schell, LLC

How are are visa numbers allocated? Do you read a Visa Bulletin?

 Taking as an example the Visa Bulletin for the month of October of  2012, you first should be aware of the following rules:

The 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. 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.

Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. 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, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. Here is how you read a Visa Bulletin: 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.

Let's view the Visa Bulletin for month of October 2012.  But keep in mind that numbers are available only to applicants whose priority date is earlier than the cut-off date.

Family-Sponsored

         ALL            CHINA       INDIA       MEXICO   PHILIPPINES
         Countries

F1    08OCT05   08OCT05   08OCT05        15JUN93      01APR96
F2A  01JUN10   01JUN10    01JUN10        15MAY10     01JUN10
F2B  15SEP04   15SEP04     15SEP04         01OCT92      22JAN02
F3    22MAY02  22MAY02  22MAY02       08FEB93       22JUL92
F4    15MAR01   5FEB01     15MAR01        22JUN96      08FEB89 

For October, F2A numbers exempt from per-country limit are available to applicants from all countries with priority dates earlier than 15 MAY 10. The F2A numbers subject to per-country limit are available to applicants chargeable to all countries except Mexico with priority dates beginning 15 MAY 10 and earlier than 01 JUN 2010.

The visa numbers are also allocated to people who are seeking to enter the United States to work under the employment-based preference.  Under the employment-based preference there are:

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.

 Here are how you read: the letter "C" means current, i.e., numbers are available for all qualified applicants; and letter "U" means that there are no numbers available.


Here is how you read it: Employment- Based All Chargeability Areas Except those listed CHINA- mainland born INDIA MEXICO PHILIPPINES

Employment-based


           ALL            CHINA              INDIA               MEXICO          PHILIPPINES
          Countries
       

1st         C                   C                        C                           C                       C


2nd   01JAN12     15JUL07              01SEP04               01JAN12               01JAN12


3rd    22OCT06    08FEB06             15OCT02              22OCT06              01AUG06


*Other Workers

         22OCT06    22JUN03               15OCT02             22OCT06              01AUG06

4th        C                 C                               C                             C                        C

Certain Religious Workers

             U                 U                                U                              U                        U

5th Targeted Employment Areas/ Regional Centers

             C                 C                                 C                               C                        C

5th Pilot Programs

             U                  U                                U                                U                        U


Department of State Visa Office releases a new visa bulletin on or about the tenth of each month with information on cut-off dates for the following month.