USA Green Card Immigration Blog

An amendment has been made in visa requirements by the Department of State saying that, in order to be eligible for the R-1 religious worker visa, applicants should obtain an approved Form I-129 of United States Citizenship and Immigration Services (USCIS) from the Department of Homeland Security. This demands the consular officers to ascertain that the visa applicant has obtained an approval for the nonimmigrant religious workers status before the R-1 religious worker visa is issued.

The Form I-129 is filed by the employer for an alien who has come to the US temporarily to perform labor or services, or to get trained, or as a nonimmigrant. The term ‘alien’ shall also include the spouse or child of such alien religious worker who travel alongside with him.

The R-1 religious worker visa is meant for members of a religious group or community having a bona fide nonprofit, religious organization in the USA. It also applies to foreign nationals who come to USA to work as the minister of a religious group. It also covers nonprofit religious organizations that employ alien religious workers such as liturgical workers, religious instructors or cantors, catechists, missionaries, religious translators, or religious broadcasters.

In simpler terms, the applicants should be beneficiaries of an approved nonimmigrant religious workers petition from the USCIS for the R-1 religious worker visa to be issued.

The petition requirement has been implemented by USCIS to determine the bona fides of the petitioning religious organization. It also helps determine that a religious worker will be admitted to the country to work for a specific religious organization at the request of that religious organization.

This amendment in visa requirements was made by the Department of State to ensure consistency with the Department of Homeland Security. The rule came into force from October 6, 2009.

U.S. Citizenship and Immigration Services (USCIS) has issued a guidance to performing arts associations and their members clarifying the regulatory requirements for agents applying as petitioners under O and P visa classification.

USCIS has taken this action because the inquiries received from the public and the service centers indicated a great deal of confusion about the circumstances under which an agent can file the petition on behalf of multiple employers.

The O-1 visa is applicable to foreign nationals who have an extraordinary ability in arts, athletics, business, education, or sciences. On the other hand the P-1 visa is applicable to internationally recognized athletes, entertainers, or circus artists for taking part in international events.

In its clarification, USCIS states that only a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent are eligible to file O and P petition. According to the O and P regulations, if the beneficiary employee works simultaneously for different employers during the same period, then each employer should file a petition separately. This petition should be filed with the Service Center that has jurisdiction on the area where the employee will work.

There are several conditions on the O and P petition filed by an agent. If it involves multiple employers, only a person or a company in business as an agent working as a representative for both the employers and the beneficiary can file the O and P petition. But there are some conditions, such as the supporting documentation should include the complete itinerary of the event, including the dates of each service, and names and addresses of the establishments as well the employers.

Though the regulations allow the employer to file a petition on behalf of multiple employers, the main requirement is that the agent be “in business” as an agent.

A bill that extends the E-Verify Program, the online employment verification system, has been passed by the Congress. It now awaits the signature of President Obama for final approval. This bill allows the extension of the E-Verify Program by three years. E-Verify Program is a system wherein employers in the United States can check the legal status of employees newly hired by them.

However, the bill does not contain a proposal from Senator Jeff Sessions who wanted to make the program permanent. But, the Congress has opted only for extension and not permanency of this bill. The program has the backing of Homeland Security officials, including Homeland Security Secretary Janet Napolitano.

The legal immigration of employees is an important aspect of the Immigration system of USA. Some or all employers of twelve states, namely Arizona, Colorado, Georgia, Idaho, Minnesota, Missouri, Mississippi, North Carolina, Oklahoma, Rhode Island, South Carolina, and Utah are required to use the E-Verify Program to check the legal status of their employees.

It is also mandatory for federal contractors and subcontractors to check the program for the legal status of government workers. According to them over 126,000 employers nationwide use this program to check on the legal status of their employees.

But many criticize that the E-Verify program cannot be depended on for confirming the legal status of employees faulty and should be done away with altogether. Even the US Chamber of Commerce and the National Association of Manufacturers have said that the E-Verify Program is faulty and have led to the erroneous disqualification of many. Homeland Security officials say that the program is 94% accurate but critics of the program argue that this could mean up to 9 million workers could still be at risk.

Though the E-Verify Program may be extended by three years with President Obama’s signature, a complete overhaul of the immigration system seems to be the ideal solution to all these problems.

The United States Citizenship and Immigration services (USCIS) published an interim final rule in the Federal Register in early November, to create a new category of visa classification called the ‘Transitional Worker’. According to Consolidated Natural Resources Act of 2008 (CNRA) a transitional worker is an alien worker who is currently ineligible for another classification under the Immigration and Nationality Act (INA) and who performs services or labor for an employer in CNMI.

The CNMI-Only Transitional Worker Program is part of several steps taken to implement the Consolidated Natural Resources Act of 2008 (CNRA), expanding U.S. immigration law in the CNMI. This non-immigrant visa category has two admission codes CW-1 and CW-2 for the principal transitional worker and the dependents respectively. Nonresidents lawfully present in the CNMI and those abroad will be eligible for the CNMI-Only Transitional Worker Program.

Nonresidents lawfully present in the CNMI must be petitioned for by their employer and for them to be eligible for the transitional worker visa. (The employer should be engaged in legal business under federal or CNMI law.) This petition must be filed using Form I-129CW, Petition for a Nonimmigrant Worker in CNMI with the required fee of $320. Under certain circumstances wherein the employer is unable to pay the fee, it may be waived. However, the employer must prove he can pay the employee his wage.

Once a worker acquires the Transitional Worker visa, he can travel to and from CNMI, provided he has the visa required for readmission. The transitional period begins on November 28th 2009 and will be on till December 31st 2014. After this period, the transitional worker visa will no longer be valid. After this, such workers must change to another status under the Immigration and Nationality Act.

This interim final rule introducing the Transitional Worker Program will assist the orderly changeover of workers’ status, from the permit system to the Immigration Law.

More Employers Face Immigration Audits – WSJ.com.

About 1,000 U.S. employers will be audited for immigration violations as the federal government escalates pressure on business owners to resist hiring illegal immigrants.

Authorities said Thursday it was the largest employer crackdown ever; the government in July announced audits of 654 businesses.

Targeted firms will get a notice that federal agents intend to audit compliance with immigration laws and check the eligibility of workers. Violations could lead to fines, as well as civil or criminal charges.

None of the 1,000 companies was named. But each firm is “associated with critical infrastructure,” officials said. That’s the label the government applies to companies involving, for example, utilities, transportation or communications. Critical infrastructure entities are also seen as national security assets or potential targets for terrorists.

The Obama administration wants to use tough enforcement to win support in a broader campaign for a congressional overhaul of the U.S. immigration system next year. The White House would like to create a way for millions of illegal immigrants in the U.S. to win legal residency and citizenship.

The Other Immigrants – WSJ.com.

Low quotas, long lines hurt U.S. competition for human capital.

The immigration debate has long been preoccupied with illegal aliens. But what about foreign-born professionals seeking green cards who stand in line and play by the rules? A new report by Stuart Anderson of the National Foundation for American Policy says the U.S. is mishandling this important human resource.

A former official at the Immigration and Naturalization Service, Mr. Anderson focuses on foreign nationals from India, who fill nearly half of the annual quota for H1-B temporary work visas. Indian professionals who want to become permanent U.S. residents face a wait time of at least 12 years and as long as 20. “To put this in perspective,” says the report, “children today in kindergarten may graduate from college by the time Indians who file new applications for an employment-based immigrant visa would receive a green card.”

One of Mr. Anderson’s findings is that the multiyear waits aren’t due to bureaucratic delays so much as to the impractical low annual limits on who can come. Under current law, no more than 140,000 employment-based green cards are issued each year. And since the spouses and children of these workers also count against the cap, the actual quota is much lower.

Congress hasn’t raised the annual cap since 1990. Over the past two decades U.S. GDP has risen by 64%, and the demand for skilled workers, notably in technical fields populated by foreign-born professionals, has risen dramatically. Yet our immigration policies pretend nothing has changed.

“The problem facing skilled foreign nationals, employers and the U.S. economy is current law does not match the aspirations of these individuals or allow the country to harness their abilities,” writes Mr. Anderson. “One result is many outstanding foreign nationals see potentially brighter futures in their home countries, leaving the America vulnerable to losing a pool of talent that has helped spur jobs, growth and innovation inside the United States.”

The costs of losing this human capital are high. Between 1990 and 2007, an astounding 25% of publicly traded companies in the U.S. that were started with venture capital had an immigrant founder. Many foreigners come initially to study or do research at our superior colleges and universities. But the barriers to remaining are forcing them out. A survey of 1,200 international students taken in March shows we can no longer take for granted that skilled immigrants will want to stay and work in America. Some 55% of Chinese, 53% of Europeans and 38% of Indian students worried about being able to obtain permanent residence in the U.S.

Canada, Australia, the European Union and others have streamlined processes for hiring foreign workers to lure skilled immigrants away from the U.S. Unless Congress addresses these long wait times and low quotas, more immigrants will take the skills they acquire in U.S. universities and use them to help other nations prosper.

The Visa Bulletin for November with details about immigrant visa projections for the month has been released by the Department of State (DOS). Cut-off dates and preference categories regarding family-based, employment-based, and diversity immigrant visas are listed in the Visa Bulletin. Green cards and visas are being allotted to those who have filed petitions before the dates mentioned in the bulletin. If the priority date is current but retrogressed, then applicants must wait until it becomes current again.

According to the Visa Bulletin priority workers are given first preference among those who have applied for employment-based (EB) immigration visas. The cut-off dates for first preference categories are current for applicants from all countries. Professionals with advanced degrees and those with exceptional ability get the second preference for immigration. The cut-off dates in employment-based second preference category (EB-2) have been changed to April 1, 2005 for China and January 22, 2005 for India. For other countries it remains current.

Among those who have applied for family-based immigration visas, the first preference is given to unmarried children of American citizens. The cut-off date for them is January 22, 2004 across the world. The second preference is for spouses and children of permanent residents. INA Section 203(e), section 203 (d), and section 202(e) under USA immigration law talks about family-sponsored preference visas for immigration in detail. These provisions are applicable to people from India, Mexico, Philippines and, those born in mainland China.

Next is the Diversity Immigration Visa (DV) Category. Entitlement to immigration status under this category is on till the end of the fiscal year for which an applicant is selected in the lottery. DV program for the year 2010 ends on September 30, 2010, after which DV visas will not be issued to applicants. This date is also the final registration date for spouses and children who want to accompany or join DV principals under derivative status.

The Department of Health and Human Services has lifted the ban on travel and immigration to the U.S. by people who have tested positive for Human Immuno Deficiency Virus (HIV).

Earlier, non-U.S. citizens who were HIV-positive were barred from traveling or immigrating to the country unless they were granted a waiver by the Department of Homeland Security. This amendment by the Department of Health and Human Services will now ensure that no alien who wants to visit or migrate to USA can be prevented from doing so on the grounds of having this disease.

The announcement to this effect was made by a determined President Obama. The Centers for Disease Control and Prevention of the Department of Health and Human Services has issued a final rule to amend its regulations to delete HIV infection from the list of communicable diseases of public health significance. Steps are also being taken to remove HIV medical examination from the list of tests to be undergone for USA immigration.

Though a serious health condition, HIV is not a communicable disease that is a significant public health risk. Hence there can be no grounds for not allowing a visitor or immigrant entry into the United States. The ban, implemented in 1987 and codified into law by Congress in 1993, to quote President Obama at the signing ceremony for the Ryan White HIV/AIDS Treatment Extension Act, was “a decision rooted in fear rather than fact.”

The new rule will come into effect on January 4, 2010. Meanwhile, USCIS has asked its officials to suspend decisions on green card applications which were to be made solely on the basis of the HIV status of the applicant till the new law is implemented.

This decision to suspend the HIV Travel Ban will, no doubt, bring a ray of hope to the HIV-infected people who wish to enter the US.

The US Congress has passed a bill that would make widows and widowers of U.S. citizens eligible for green cards even if their spouses died before their applications were approved. This comes as a welcome relief to widows and widowers of US citizens such as Dahianna Heard, Raquel Williams and Ana Maria Moncayo-Gigax who have, for ages, fought tooth and nail for approval of their green card.

Part of the Homeland Security appropriations bill, this move does away with the infamous “widow penalty”. It had demanded that the couple be married for two years before the surviving spouse can apply for residency.

This unfair stipulation was a cause of worry for hundreds of people who were not granted a green card due to the untimely death of their spouse. Many have already been deported by the US Immigration due to this provision and many more are waging a legal battle against deportation.

Though the federal government announced that deportation proceedings will be suspended for two years so that applicants can stay in the U.S. while their legal status was being resolved, many, including immigration attorneys felt that it didn’t go far enough in doing justice to the surviving spouses.

With the passing of this bill, green card eligibility will be granted irrespective of when the spouse died or how long have they been married. In addition to the surviving spouse, green card application can be submitted for their children also.

The bill has been forwarded to President Obama for his nod. Once it is signed by him it will ensure a smooth passage for surviving spouses of US citizens applying for green card.

United States Citizenship and Immigration Services (USCIS) recently announced the revision of Form I-601, Application for Waiver of Grounds of Excludability. The purpose of this USCIS immigration form is to enable a person who is termed ineligible to be admitted to the United States seek a waiver of certain grounds of inadmissibility.

The revised version of the Form I-601 aims at making it easier for the applicants to complete the form. The new version of the USCIS immigration form includes a list of grounds of inadmissibility. To request a waiver, applicants can mark those that apply to them.

In the previous version, the information about the grounds of inadmissibility was found only in the form’s instructions. But now the revised version of the Form I-601 contains a section for applicants to describe reasons for their inadmissibility.

USCIS also plans to waive the filing fee in certain cases taking into consideration the individual’s inability to pay. The fee waiver is only available to individuals who meet a few conditions listed. For instance, an alien who has valid T or U nonimmigrant status or an approved Violence Against Women Act (VAWA) self-petitioner unable to pay the filing fee is eligible for the waiver.

USCIS plans to accept the earlier edition of this USA immigration form dated 10/30/08 till November 20, 2009. But from November 21, the previous versions of the form will be rejected and only the revised Form I-601 dated 04/06/09 will be accepted.

Individuals residing in the United States and applying for a status as permanent resident can file the Form I-601 with the local office, which has jurisdiction over their place of residence. Individuals not in the United States however, can file the Form I-601 with the American embassy or the consulate where they are applying for the visa.