H-1B Cap: Congress Needs to Do Its Job

During the first week of April, the USCIS received 233,000 H-1B petitions from companies in the US seeking to employ foreign-born professional workers. This exceeds the number of H-1B petitions received last year by over 60,000. Under current law, only 85,000 of these petitions can be approved, about 36%.

 Most of the other 64% of these petitions will be returned to disappointed employers. Computer professionals, physicians, teachers, researchers, and many others will have to find jobs abroad. If they are in the US, most will be forced to return to their home countries.

Congress has faced this problem in the past, and resolved it by increasing the H-1B quota. In January 2013, a bipartisan group of Senators introduced the “I-Squared” bill which would do just that.

However, Congress is stalemated on this and many other immigration issues.

The Chairmen of the Senate Judiciary Committee and the Immigration Subcommittee oppose this legislation and are focused on tightening loopholes in the H-1B program. Many of their concerns are valid. When a few companies use H-1B workers to displace US workers, I think we can all agree that this is wrong, and that the law needs to be changed to prevent this from happening.

But why can’t the H-1B cap be raised and loopholes in the law be closed at the same time? This would be a reasonable compromise, and Congress is supposed to be adept at the art of compromise, especially when the H-1B program is clearly in the our national interest.

Smart, well-educated foreign-born scientists worked for the Manhattan Project and helped save many thousands of American lives in World War II. More recently, foreign-born professionals were responsible for developing the anti-HIV cocktail and founding major US employers like Google, Yahoo, and Intel and providing jobs for hundreds of thousands of American workers.

It’s time for Congress to get its house in order and pass H-1B legislation.

H-1B Lottery

Outside the world of Congress, on April 13, the USCIS selected the 85,000 lucky H-1B lottery winners. However, it will be some time before they are notified.

The USCIS will begin to adjudicate H-1B cap-subject cases where the employers paid an extra fee for premium processing starting on April 27. Then, by May 12, these employers will receive approvals, denials, or requests for additional evidence on these cases.

After this, USCIS will begin to adjudicate non-premium processing H-1B petitions. This process will probably continue until August.

Most H-1B professionals for whom petitions are approved by the USCIS will be able to start work on October 1, 2015, although students with OPT will be able to continue their employment throughout the summer if H-1B petitions are approved on their behalf.

Employers can expect that by sometime in June, they will receive back their H-1B petitions as well as refunds of filing fees for petitions which were not selected in the lottery.

Military Expands Program Which Expedites US Citizenship

Recently, the Defense Department greatly expanded a program which allows certain persons holding temporary visas to bypass the green card process and apply directly for US citizenship.

The MAVNI (Military Accession Vital to National Interest) program was started in 2008 to recruit persons with medical skills (Certain physicians and nurses, etc.) or with special language skills into to the US military. Most of these persons have to be present in the US in temporary visa status. Once they complete their basic training, they are immediately eligible to apply for naturalization.

MAVNI has strict numerical limits. However, the numbers were recently increased from 1,500 to 3,000 per year and will increase again in fiscal year 2016 (which starts October 1, 2015) to 5,000 year per year.

The government recently announced that it would accept applications from persons with DACA work permits. Also, persons with TPS, physicians who had not received a J waiver, and asylees/refugees are eligible to apply. Caveat: Spanish is not one of the languages on the MAVNI list.

Eligible individuals can enlist for a 3-year contractual active duty tour or for 6 years in the Selected Reserve.

If a person naturalizes, but fails to complete the above requirements, their US citizenship can be revoked.

Languages include Albanian, Amharic, Arabic, Azerbaijani, Bengali, Bulgarian, Burmese, Cebuano, Cambodian-Khmer, Chinese, Czech, French (with citizenship from an African Country), Georgian, Haitian Creole, Hausa, Hindi, Hungarian, Igbo, Indonesian, Kashmiri, Korean, Kurdish, Lao, Malay, Malayalam, Moro (Tausug/Maranao/Maguindanao), Nepalese, Pashto, Persian Dari, Persian Farsi, Polish, Portuguese, Punjabi, Russian, Sindhi, Serbo-Croatian, Singhalese, Somali, Swahili, Tagalog, Tajik, Tamil, Thai, Turkish, Turkmen, Ukrainian, Urdu (with citizenship from Pakistan or Afghanistan), Uzbek, and Yoruba.

Active Duty Medical Specialties include Comprehensive Dentist, Oral Surgeon, Preventive Medicine, Anesthesiologist, Pediatrician, Psychiatrist, Internal Medicine, Family Medicine, General Surgeon, Emergency Medicine, Nuclear Medical Science Officer, Entomologist, Psychiatric Nurse Practitioner, and Nurse Anesthetist.

Army Reserve Medical Specialties include General Dentist, Comprehensive Dentist, Prosthodontist, Oral Surgeon, Preventive Medicine, Urologist, Anesthesiologist, Ophthalmologist, Otolaryngologist (ENT), Psychiatrist, Internal Medicine, Family Medicine, General Surgeon, Thoracic Surgeon, Orthopedic Surgeon, Emergency Medicine, Entomologist, Licensed Clinical Psychologist, Physician Assistant, and Psychiatric Nurse Practitioner.

For Army Reserve only: Health care professionals in their final year of residency may be eligible to apply to the MAVNI program.

Additional information about MAVNI is available on the following website (http://www.goarmy.com/benefits/additional-incentives/mavni.html)

H-1B Lottery Odds are Less than 50% - Apply for an EB Green Card Now!

Please note: This blog post was originally published on February 15, 2015.

In 2014, when over 172,000 petitions were filed for 85,000 visas, immigration lawyers had the following advice for the H-1B lottery losers:

1. Look for a cap-exempt H-1B employer;
2. Get a TN or an E-3 visa if you are eligible;
3. Extend your OPT if you are a STEM graduate;
4. Go to graduate school on an F-1 visa; or
5. Return to your country, and try again next year.

This year, there will probably be over H-1B 200,000 petitions filed for 85,000 visas, so the odds of being selected for the H-1B lottery will be far less than they were last year.

This year, there is a better alternative to waiting for the H-1B lottery results: Have your employer sponsor you for a green card now.

Last year, the wait in the EB-3 professional category was 18 months. This year, the EB-3 wait has been decreasing every month. Consider the first 3 months of 2015: January (19 months), February (13 months) and March (9 months). Odds are the EB-3 waiting times will continue to shrink, perhaps to 6 months or less.

This is great news for both employers and employees getting ready for the H-1B lottery in April. After all, even if one wins the H-1B lottery, he cannot get H-1B status for at least 6 months, until October 1, 2015. So why not start your application for a green card now? It is not necessary to wait until April to apply for a green card.

Let’s examine the following categories of potential immigrants:

Students who will Graduate this June
If you are due to graduate from a US university in June, you will be granted a 12-month OPT work permit (EAD), perhaps with the possibility of a 17-month extension if your degree is in a STEM (Science, Technology, Engineering, and Mathematics) field.
If you employer immediate files a PERM application of your behalf, it may be approved before the end of 2015 and you can file forms I-140 and I-485 simultaneous. 90 days later, you will qualify for another EAD, and you will get your green card a few months later.
Caveat: If the job requires experience that you lack, PERM is not an option as this point.
Registered Nurses and Physical Therapists
Most RNs are ineligible for H-1B visas, so it may not make sense to apply. However, both RNs and PTs are Schedule A shortage occupations, meaning that their employers do not have to file PERM applications for them. Instead, they can simply file I-140s for them, and when their priority dates are reached a few months later, they can submit I-485 packets and received an EAD 90 days later. A few months after that, they will receive green cards.
Other Professionals
If you are not eligible for OPT and are not an RN or a PT, there is no reason to worry. If you are present in the US on another type of working visa (E-1, E-2, H-1B, H-4, J-1, J-2, L-1, L-2, O, P, R, etc.) your employer can sponsor you for a green card, and you will be probably get an EAD within 12 months and a green card shortly thereafter.
If you outside the US, you will have to get your green card abroad, but do not let that stop you. If your employer in the US is willing to sponsor you for a green card, you will probably enter the US as a permanent resident within 1 to 2 years.
Unfortunately, Congress has yet to abolish the per-country quotas for EB visas. Until they do, applying for a green card will take many years for persons born in India and China with needed job skills.
Section 245(k)
What if so many people who lose the H-1B lottery all apply for green cards now that the waiting times start to retrogress?
If you are in the US, remember that section 245(k) of the law permits you to adjust your status under an employment-based category as long as you have not been out of status for 180 days or more since you last admission to the US. In other words, you have 6 months of wiggle room.
So, if you lose the H-1B lottery, don’t jump off a bridge. Have your employer sponsor you for a green card, now!

I-Squared Bill: More H-1B Visas & Green Cards

Please note: This blog post was originally published on Sunday, January 18, 2015.

On January 13, a bipartisan group of Senators introduced the Immigration Innovation (“I-Squared”) Act of 2015.

The Act would create a much-needed overhaul of our broken legal immigration system. It would dramatically raise the H-1B cap, and would provide much-needed reforms of the employment-based preference system for green cards. It would also raise the per-country cap for family-based green cards.

What follows is a brief summary of the I-Squared Act.

Temporary Visas

• Raise the general H-1B cap from 65,000 to 115,000
• Allow the cap to go up (but not above 195,000) within any fiscal year where early filings exceed cap and require the cap to go down in a following fiscal year (but not below 115,000) if usage at the end of any fiscal year is below that particular year’s cap
• Remove the 20,000 limit for the Masters’ cap
• Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states
• Grant employment authorization for H-4 visa holders
• Establish a grace period during which foreign workers can change jobs and not be out of status and restore visa revalidation for E, H, L, O, and P visas
• Allow dual intent for foreign students at US universities

Green Cards

• Enable the recapture of green card numbers that were approved by Congress in previous years but were not used, and continue this policy going forward through the roll-over of unused green cards in future fiscal years to the following fiscal year
• Exempt certain categories of persons from the employment-based green card cap:
  • Dependents of employment-based immigrant visa recipients
  • US STEM advance degree holders
  • Persons of extraordinary ability
  • Outstanding professors and researchers

• Eliminates per-country limits for employment-based green cards
• Increases per-country limits for family-based green cards from 7% to 15%

The I-Squared bill would remove many of the artificial limits on obtaining temporary work visas and permanent residence for the next generation of entrepreneurs and leaders in science and technology. Providing more visas for these innovators will, in turn, create additional jobs for US workers.

EB-3 Category: Great News in February Visa Bulletin!

Please note: This blog post was originally published on Friday, January 9 ,2015.

Fantastic news for those in the EB-3 category in the February 2015 Visa Bulletin!

Two years ago, the wait for those in the EB-3 category was almost 6 years to get a green card, even more for persons born in the Philippines (as well as China and India, which is a problem yet to be resolved by Congress). During the past 2 years, the wait has been shrinking and shrinking.

Now, in the February 2015 Visa Bulletin, the wait has fallen to 13 months, and the State Department predicts even faster waiting times in the months ahead.

This is an opportunity which you cannot afford to miss. If you qualify for a green card in the EB-3 category (Professionals and Skilled Workers), make sure your employer submits a PERM application for you immediately!

If you are a Registered Nurse or a Physical Therapist, no PERM application is required. Your employer should submit an I-140 visa petition on your behalf as soon as possible. As soon as your priority date becomes current, apply for a green card using form I-485.
 

EB-3 vs. H-1B

 
This is especially great news for foreign-born students studying in the US. Once you graduate, you can apply for Optional Practical Training (OPT). OPT  is a work permit which is valid for at least 12 months, or for some STEM jobs, up to 29 months.

Since getting an H-1B temporary work visa is a 50-50 lottery these days, if your employer submits a PERM application or an I-140 petition at the beginning of your OPT period, you may be able to go directly from OPT to Green Card, and bypass H-1B altogether.

This is great news for employers as well, given the costs and uncertainty of obtaining H-1B status for essential employees.

Don’t hesitate, apply immediately!

Will the H-1B Cap Be Raised this Year?

Please note: This blog post was originally published on Sunday, January 4, 2015.

A bipartisan group of Senators lead by Orrin Hatch (R-UT) is trying to pass a bill which would raise the H-1B cap from 85,000 to 135,000. The I-Squared bill would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000.

Does this bill stand a chance to be signed into law before the April 1st H-1B start date?

Perhaps, but there are a lot of hurdles which must be overcome, including some internal battles within Hatch’s own party.

Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.”

However, not all his GOP colleagues agree.

Two senior Republican Senators, Jeff Sessions (R-AL) and Charles Grassley (R-IN), argue that there is no shortage of high-tech workers in our country. In 2007, Grassley said: “Unfortunately, the H-1B program is so popular that it’s now replacing the U.S. labor force.” Senator Grassley is slated to become the Chairman of the Senate Judiciary Committee later in January, when the Republicans take control of the Senate.

Are Senators Sessions and Grassley champions of the American worker, or are they simply anti-immigrant? As to the first issue, they have two of the worst voting records on labor-related issues according to the AFL-CIO. They both have negative voting records on immigration legislation.

Even if the bipartisan coalition is somehow successful in getting the bill through Senator Grassley’s Committee and then approved by both the Senate and the House of Representatives, there is no guarantee that it would be signed into law by President Obama.

The President does not like the idea of “piecemeal” immigration reform. Instead, he supports the idea of Comprehensive Immigration Reform (CIR). He would have signed the bipartisan CIR bill which was passed by the Senate in 2013, but Speaker of the House John Boehner (R-OH) declined to bring the bill to a vote in the House.

That bill would have raised the H-1B cap to 180,000 rather than 135,000. Although the new legislation is a significant improvement to the status quo, it doesn’t do enough to solve the larger problem. It all but insures that there will continue to be an “H-1B lottery” this year as over 172,000 H-1B petitions were submitted by employers in 2014.

Not only that, but allowing more H-1B professionals to work in the U.S. without abolishing the “per country” quotas for employment-based green cards leaves workers born in India and China with little choice but to look elsewhere for jobs, thus threatening our country’s supremacy in various areas of science.

Opponents of raising the H-1B cap should remember that, until 1991, there was no cap of the number of H-1B visas, and yet there was virtually no criticism of the program in Congress.

Maybe we should let the free market rather than the federal government decide how many H-1B professionals to hire.

I-601A Provisional Waiver FAQ

Please note: This blog post was originally published on Thursday, January 3, 2013.

On January 3, 2013, the DHS published a regulation which will, as of March 4, 2013, allow persons who entered the U.S. without inspection (or who are otherwise ineligible to adjust their status in the U.S.) to apply for “form I-601A provisional waivers” to excuse their unlawful presence in the U.S. Once their waivers are approved by the USCIS, they will be eligible to attend their appointments for immigrant visas (“green cards”) abroad.

The aim of this new program is to avoid having immediate relatives submit I-601 waivers abroad, and then be separated from their families for months or even years while their waivers are pending.

Instead, they will obtain their waivers before leaving the U.S., be interviewed abroad, and return to their families in the U.S. within a few days.

The following set of Frequently Asked Questions (FAQ) explains many of the complications involved in the new provisional waiver process:

1. Who qualifies to submit a provisional waiver in the United States?

To qualify, a person must be at least 17 years old, and be the beneficiary of an approved I-130 visa petition as an “immediate relative” of a U.S. citizen.

Immediate relatives are spouses, parents, and children of U.S. citizens. To be considered a “parent”, the sponsoring son or daughter must be at least 21 years of age. To be considered a “child”, the person must be under 21 years of age, although many persons over 21 years of age may still be classified as children under the Child Status Protection Act (CSPA).

The law requires that in order to obtain an waiver, the applicant must demonstrate “extreme hardship” to a qualifying relative. Qualifying relatives must be spouses or parents who are U.S. citizens or lawful permanent residents (LPRs). However, a person with only an LPR spouse or parent, while eligible to apply for a regular I-601 waiver abroad, is ineligible to qualify for an I-601A provisional waiver in the U.S.

Persons who are in the numerically-limited family or employment-based preference categories do not qualify for provisional waivers, although the USCIS indicates that the program could be expanded at some point in the future.

2. What grounds of inadmissibility does the waiver apply to?

The waiver applies solely to inadmissibility based on “unlawful presence” in the U.S. Applicants must be subject to either the 3-year or the 10-year bar once they leave the U.S. Persons subject to the “permanent bar” can not submit a waiver application until they have remained outside the U.S. for 10 years. Hence, they are ineligible for provisional waivers.

Persons who are inadmissible under another section of the law (e.g.fraud, criminal convictions, etc.) are also ineligible for provisional waivers.

3. What if a person is already outside the U.S. or is scheduled for an immigrant visa interview outside the U.S.?

Such persons are ineligible to submit provisional waivers.

4. What if a person is currently in removal proceedings or is subject to a final order of removal?

Such a person may participate in the provisional waiver program only if his removal proceedings have been “administratively closed” and have not been recalendared as of the time that the waiver is submitted to the USCIS.

Persons in removal proceedings who have applied for Deferred Action (DACA) may apply for provisional waivers after USCIS grants their DACA  applications, but only if they meet all the requirements for filing a provisional waiver and their removal proceedings have been administratively closed.

If the USCIS approves a provisional waiver for a person in removal proceedings, the person must seek termination or dismissal of the removal proceedings by the Executive Office for Immigration Review (EOIR), and this must be granted before the person departs the U.S. for their immigrant visa interview abroad. Failure to do so could prevent the person from obtaining an immigrant visa and returning to the U.S.

Persons under final orders of removal are ineligible to participate in the provisional waiver program.

5. Can a person who had a previously scheduled immigrant visa interview (scheduled by the State Department prior to January 3, 2013) abroad that he did not attend submit a provisional waiver?

The answer is usually no. However, there are exceptions.

Here we quote the DHS:

“An alien who is ineligible to apply for a provisional unlawful presence waiver because of a previously scheduled immigrant visa interview may still qualify for a provisional unlawful presence waiver if he or she has a new DOS immigrant visa case because 1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or 2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.”

“DOS” in the above paragraph stands for the “U.S. Department of State”.

6. Is it possible to waive the fees for an I-601A provisional waiver ($585) or for the biometrics ($85)?

No.

7. Is premium processing available for an I-601A waiver?

No, but applicants can request expedited adjudication of a provisional waiver in accordance with current USCIS expedite guidance.

Generally, the USCIS takes about 4-6 months to approve an I-601 waiver. With an expected influx of many thousands of I-601A provisional waivers, expect waiting times to increase, perhaps dramatically, since the USCIS has no plans to boost the number of officers who will be adjudicating hardship waivers.

8. If a person’s I-601A waiver is denied, is it possible to appeal?

No.

However, although it is not possible to appeal an I-601A denial or submit a Motion to Reopen (The USCIS reserves the right to reopen or reconsider an I-601A denial on its own motion.), it is possible to refile a waiver after a denial.

Again, we quote the DHS:

“If an individual’s provisional unlawful presence waiver request is denied or withdrawn, the individual may file a new Form I-601A, in accordance with the form instructions and the required fees. The applicant’s case must still be pending with DOS, and the applicant must notify DOS that he or she intends to file a new Form I-601A. In the case of a withdrawn Form I-601A, USCIS will not refund the filing fees because USCIS has already undertaken steps to adjudicate the case.”

“Alternatively, an individual who withdraws his or her Form I-601A filing or whose Form I-601A is denied can reapply for a Form I-601 Application for Waiver of Grounds of Inadmissibility, with the USCIS Lockbox, after he or she attends the immigrant visa interview and after DOS conclusively determines that the individual is inadmissible. If the ground(s) of inadmissibility identified by the DOS consular officer can be waived, the individual can file a Form I-601 along with any supporting documentation or evidence needed to demonstrate eligibility for the waiver and ultimately the immigrant visa…”

“Applicants and their attorneys or accredited representatives also are reminded that they may address or correct mistakes by supplementing a pending Form I-601A waiver request with additional evidence or correcting the request before USCIS makes a final decision in the case. USCIS will take into consideration any evidence received when making the decision.”

9. Can a person who submits an I-601A waiver be placed in removal proceedings?

Although the USCIS states that it “does not envision initiating removal proceedings against aliens whose Form I-601As are denied or withdrawn prior to final adjudication”, it reserves the right to do so if the person is considered to be a “DHS enforcement priority – that is, if the individual has a criminal history, has committed fraud, or otherwise poses a threat to national security or public safety.”

“DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: (1) confer any legal status; (2) protect against the accrual of additional unlawful presence; (3) authorize an alien to enter the United States without securing a visa or other appropriate entry document; (4) convey any interim benefits (e.g., employment authorization, advance parole, or eligibility to be paroled based solely on a pending or approved Form I-601A); or (5) protect an alien from being placed in removal proceedings or removed from the United States, in accordance with current DHS policies governing initiation of removal proceedings and use of prosecutorial discretion.”

10. What are the chances that your I-601A waiver will be granted?

This, of course, depends on the facts of your case, and how well your I-601A waiver is documented to demonstrate “extreme hardship” to your qualifying relatives. Do not submit 5 or 6 exhibits and expect to receive an approval. Here, it is absolutely essential that your attorney know the legal basis for establishing “extreme hardship”, and that he or she has prepared many successful I-601 waiver applications.

Extreme hardship can be emotional, financial, medical, etc. and hopefully a combination of these and many other factors.

Last year, the USCIS denied 34%, or a little more than one out of every three, I-601 waivers.

Persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for the child(ren).

Also, many of those denied by the USCIS prepared their applications on their own or used the services of a notario or an immigration “consultant”.  This is not a wise course of action.

Hire an experienced immigration attorney.

But how do you choose the right attorney to prepare your I-601A waiver? A good place to start is by watching the following video.

Immigration & Gay Marriage: Why Are We Still Living in a Cave?

Please note: This blog post was originally published on Tuesday, December 25, 2012.

Imagine receiving an I-130 denial from the INS which read: “You have failed to establish that a bona fide marital relationship can exist between two faggots.”

This notice was sent by the Los Angeles office of the INS in 1975 to Richard Adams, a naturalized U.S. citizen born in the Philippines, with regard to the immigrant visa petition (I-130) that he had submitted to the INS on behalf of his spouse Anthony Sullivan, an Australian citizen, who had arrived in the U.S. as a visitor and who married Adams in Boulder, Colorado.

A Federal District Court Judge upheld the INS’ decision (albeit with the word “faggot” removed). Later, in 1982, in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), the 9th Circuit Court of Appeals unanimously upheld the decision of the District Court Judge.

The Appeals Court held that it was bound to follow the words of the statute and the intent of Congress if there was any rational basis for doing so. At that time, another section of the law held that homosexuals were excludable from the U.S. Therefore, the Court concluded that when Congress used the term “spouse”, they were referring only to partners in heterosexual marriages.

Adams and Sullivan urged the Court to strike down the law as a violation of the Equal Protection Clause of the Constitution. However, the Court held that the executive branch’s power over immigration trumped any rights granted by the Constitution.

The Supreme Court declined to review the holding of the 9th Circuit, and the Court’s decision remains binding today. As recently as 2011, a Federal District Court Judge ruled that he was bound by the decision in Adams v. Howerton.

Of course, things may change depending on the Supreme Court’s decision regarding the constitutionality of the Defense of Marriage Act (DOMA), which is expected in 2013.

Sadly, Richard Adams will not be around to see what the Supreme Court decides. He died at the age of 65 in December 2012.  The day before he died, Sullivan, who had lived quietly in the U.S. with Adams for decades, told him that the most important victory was that they were able to remain together as a couple.

“Richard looked at me”, Sullivan stated, “and said ‘Yeah, you’re right. We’ve won.’”

Dems and GOP Clash over STEM Jobs Bill

Please note: This blog post was originally published on Sunday, November 25, 2012.

Think that the election results will force the Democrats and Republicans to compromise on the issue of immigration? Better think again.

In this week’s “lame duck” Congress, the House of Representatives is scheduled to take up the matter of the STEM Jobs Act of 2012 (H.R. 6429). It would provide 55,000 green cards per year for foreign-born persons with advanced degrees from U.S. universities in the physical sciences, technology, engineering, and mathematics.

Everyone agrees that making these people lawful permanent residents is good for our country, and good for the economy. So, passing a bill like this should be a “no-brainer”, right?

Not so fast. The devil, as usual, is in the details.

The bill is sponsored by 68 Representatives, almost all of whom (67) are Republicans. The bill received the endorsement of the U.S. Chamber of Commerce and almost every high tech company in the U.S. Though it received the votes of a majority of the members of the House of Representatives, it failed to pass the first time around on September 20 because its sponsors attempted to suspend the rules to cut off debate and pass the bill during the election campaign. This required a two-thirds vote, and 158 members of Congress, mostly (153) Democrats, voted against the bill.

The Democrats chief objection to the bill is that it would eliminate the Diversity Visa Lottery, and use the visas for those with STEM degrees instead. Why eliminate the Lottery? Because the Republicans are loath to increase the number of persons who obtain permanent residence each year. Why not eliminate the Lottery? Because the Democrats see the Lottery as essential to insuring that persons from countries with very little immigration to the U.S. have a chance to qualify for green cards. Also, they object that if there are not enough STEM graduates to fill the quota, the unused numbers could not be used for those in backlogged employment and family categories.

The Democrats had already introduced their own STEM bill, the “Attracting the Best and Brightest Act of 2012” (H.R. 6412). This bill would provide 50,000 green cards for STEM graduates while leaving the Visa Lottery in place. However, their STEM program would “sunset” after two years. This bill was not voted upon. Then the Democrats introduced the “BRAINS Act” in the Senate, which would grant green cards to STEM graduates while preserving the Visa Lottery. Unused numbers would help reduce backlogs in the EB categories.

Both political parties, in their platforms, profess strong support for granting green cards to STEM graduates. Even if the Republican bill passes in the House this coming week, the GOP needs to work out a deal with the Democrats if they expect the bill to pass in the Senate and be signed by the President.

I am not a big fan of the Visa Lottery. It seems a little crazy to hand out green cards randomly when millions of people sponsored by US employers and US citizen relatives must continue to wait in line for many years (or even decades). However, since both parties generally agree on the need for green cards for STEM graduates, wouldn't it be best to pass a bill on this, and tackle other issues like the Visa Lottery separately?

I like the Republican idea of a permanent STEM program, and the Democrat’s idea of having the unused STEM numbers be used to help those stuck in long EB backlogs.

This week, the Republican STEM bill in the House will be amended to allow spouses and children of permanent residents to reunite with their families in the U.S. a year after I-130 petitions are filed on their behalf. They would not be permitted to work until they receive their green cards, but hundreds of thousands of families would be united. This is certainly a step in the right direction.

Let’s see if both sides can do a little “horse trading” this week, put aside their differences, and pass a compromise STEM bill.

Republicans' Face About Face on Immigration

Please note: This blog post was originally published on Monday, November 12, 2012.

Within days of President Obama’s reelection, a number of miraculous conversions occurred among Republicans with regard to immigration policy.

Sean Hannity, the conservative Fox News host stated: We've gotta get rid of the immigration issue altogether. It’s simple for me to fix it. I think you control the border first, you create a pathway for those people that are here, you don’t say you gotta go home. And that is a position that I've evolved on. Because you know what—it just—it’s gotta be resolved. The majority of people here—if some people have criminal records you can send ‘em home—but if people are here, law-abiding, participating, four years, their kids are born here … first secure the border, pathway to citizenship … then it’s done. But you can’t let the problem continue. It’s gotta stop.”

Even more remarkable, John Boehner, the Republican Speaker of the House seems to have experienced a similar conversion at exactly the same instant as Mr. Hannity: “This issue has been around far too long…A comprehensive approach is long overdue, and I’m confident that the president, myself, others can find the common ground to take care of this issue once and for all.”

The cynical among us would probably attribute these simultaneous conversions to the fact that President Obama received over 70% of the Latino vote. Why was that? In the Republican primaries, Mitt Romney moved to the right of both Rick Perry and Newt Gingrich on the immigration issue. He vowed to veto the DREAM Act should it reach his desk, and seemed horrified by the Texas law which allows home state Dreamers to qualify for in-state tuition. Such stands helped him win the Republican nomination, but proven disastrous in the general election.

So now, will Republicans in Congress wise up and support Comprehensive Immigration Reform (CIR)? Despite the twin conversions mentioned above, I am not so sure. Indeed, Boehner does not seem to have consulted the members of his caucus in advance of his sudden change of heart.

Consider the words of Representative John Fleming (R-LA): “(Boehner was) getting ahead of House Republicans when he commits to getting a ‘comprehensive approach’ to immigration…There’s been zero discussion of this issue within the conference, and I’m urging the speaker to talk with House Republicans before making pledges on the national news.”

Sadly, it seems that many Republican members of Congress are not about to change their negative positions on immigration despite the election results. The good news is that if even a couple of dozen Republican Representatives vote for CIR, it could become law in 2013. However, whether Boehner can persuade enough of his caucus to support CIR remains to be seen.

Republicans have not traditionally been hostile to immigration. I am old enough to remember when President Reagan, a Republican icon, signed the last CIR law in 1986. I also remember when Spencer Abraham (R-MI) was the pro-immigration Chairman of the Senate Immigration Subcommittee. Anti-immigrant groups were largely responsible for his reelection defeat in 2000. I testified before that Subcommittee in 2001 when the pro-immigration Senator Sam Brownback (R-KS) became the Chairman.

But times have changed. The formerly pro-immigration Republican members of Congress have removed their names as sponsors of the DREAM Act. Under pressure from the extreme right, reasonable Republicans like Senator John McCain and Orin Hatch have renounced their earlier support for pro-immigration legislation in order to be reelected. Indeed, support for immigration reform has become heresy for Republicans much to their detriment as a viable political party. Don’t take my word for this.

Listen to what the very conservative former House Republican Majority Leader Dick Armey has been saying about immigration and the Latino vote for the past few years:“Anti-immigration has always been ironic, because throughout our history newcomers have been a source of strength, not weakness. ... Who in the Republican Party was the genius who said now that we have identified the fastest-growing demographic in America, let’s go out and alienate them? This is a nation of immigrants. … There is room in America.”

Child Status Protection Act (CSPA) Victory!

 Please note: This blog post was originally published on Thursday, September 27, 2012.

Today, in De Osorio v. Mayorkas, the Ninth Circuit joined with the Fifth Circuit in Khalid, and held that the plain language of the Child Status Protection Act (CSPA) provides automatic conversion and priority date retention to aged-out beneficiaries of all family-based preference categories.

The Court’s decision is an important victory in a battle that began with two lawsuits filed in 2008.  For those who have not been following this litigation, below is a bit of background.

Traditionally, when a child turned 21 years of age, she was no longer eligible to immigrate to the U.S. together with her parents. Once the parents become permanent residents, they have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entails years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separation of parents from their sons and daughters.

The CSPA contains two provisions to carry out this important purpose. Under section 203(h)(1), the length of time that the visa petition was pending with the USCIS is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with her parents. This provision makes sure that children are not penalized for the USCIS processing times.

If the child’s CSPA age is 21 or over after this calculation, under section 203(h)(3) she automatically converts to the appropriate category and retains the priority date of the original petition. This provision provides some relief from the harsh impact of extensive visa backlogs, by crediting the child with the years she spent waiting in line with her parents.

Here is an example of how the automatic conversion and priority date retention clause should work:

Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos’ sister, a U.S. citizen, on January 27, 1989. Their fourth-preference priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992, and 1996. The sister’s visa petition was approved in one month. Therefore, their children, the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20, and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.

Unfortunately, the government took a restrictive view of the CSPA’s automatic conversion and priority date retention clause. In Matter of Wang, the Board of Immigration Appeals found an ambiguity with regard to what petitions are covered by the 203(h)(3). The result? Under Wang, only children who were derivatives of an F2A petition would benefit from the automatic conversion and priority date retention clause.

Thus, in the example above, the daughter of Mr. and Mrs. Santos could not benefit from the CSPA. Because she was originally included as a derivative of a fourth-preference petition, she was not eligible for the CSPA’s automatic conversion and priority date retention provisions.

In today’s long-awaited decision, the Court found that Matter of Wang conflicts with the plain language of the CSPA and is owed no deference.

The Court rejected the BIA’s finding of ambiguity and found that CSPA’s automatic conversion and priority date retention clause clearly applies to beneficiaries of all family-sponsored petitions. The Court emphasized that the agency cannot impose its own interpretation when Congress has clearly spoken.

The Court also rejected the government’s contentions that the statute is ambiguous because it cannot practicably be applied to aged out derivatives of F3 and F4 petitions. The government argued that automatic conversion and priority date retention always requires the same petitioner, and the same petition.

However, the Ninth Circuit reasoned that unresolved procedural questions regarding how the law will be implemented do not create an ambiguity in the statute. According to the majority, any “change in policy announced by the statute’s plain language cannot be impracticable just because it is a change or because it does not specify how exactly that change is to be implemented.”

In its decision, the Court expressed confidence that the agency can develop a process to implement the plain terms of the CSPA. We hope the USCIS will begin that process now so that our clients, and the many others like them, may finally be reunited with their children.

One caveat: As we've cautioned in prior blog posts, today’s decision may not be the end of the story. Now we wait to see whether the government will ask the United States Supreme Court to review the Ninth Circuit’s decision. If that happens, it could be quite some time before the CSPA issue is decided once and for all.