Trumps latest immigration exec order: Here’s what the Executive Order says:
Sec. 2. Policy
In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act – This section of the law governs the Labor Certification process for employment-based green cards, it is not related to H-1B petitions.
Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.”
(a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse. – Most of these ideas neet to be proposed through notice and comment rulemaking.
(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. – This would likely then require legislative action by congress to change the laws that created the H-1B program.
Likey the H-1B program will change in the future, but the change will not happen immediately. Cases in the H-1B lottery for now will proceed without change.
The source of these predictions is Mr. Charles Oppenheim who is the Chief of the Visa Control and Reporting Division at the U.S. Department of State and who is actually the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards. Ms. Hayden served on a panel with him last week at the Federal Bar Association Conference in Memphis.
Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months. Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.
EB-1. This category is expected to remain current throughout the fiscal year. Also, it is too early in the fiscal year to be able to determine how many unused EB-1 visa numbers there will be to “drop down” into the EB-2 category.
EB-2 Rest of World (ROW). This category is expected to remain current throughout the fiscal year.
EB-2 India. This is the major headline from Mr. Oppenheim’s comments – EB-2 India is likely to move forward to January 1, 2008 during the August or (more likely) September Visa Bulletin. This movement will aim to utilize all of the available visa numbers for the fiscal year that may be unused by other categories (possibly 5,000 or more, but fewer compared to prior years).
EB-3 Rest of World (ROW). This category has seen increased demand over the past few months (due to the significant movements) and it is unlikely that there will be forward movement in the short term. In fact, if demand continues at its current pace, there may be a retrogression as early as June 2014. Retrogression is possible for the last quarter of fiscal year 2014 (Jul-Sep 2014) and this is a call for all EB-3 ROW applicants who are current to file their I-485s as soon as possible.
EB-3 China. As a result of many EB-2 China applicants “downgrading” to EB-3 it is expected that EB-3 China will see some retrogression over the next month or two.
EB-5 China. Mr. Oppenheim suggested that the demand for EB-5 is high and a cutoff date may be introduced in August or September. Retrogression for EB-5 China is “inevitable” given the high number of EB-5 pending applications for Chinese nationals.
Visa Bulletin Predictions – Family-Based
Additionally, Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months for the family-based categories as well.
FB-2A. Demand is starting to increase; as a result, FB-2A Mexico will retrogress soon. FB-2A ROW is also likely to retrogress, perhaps back to 2012 in the June or July 2014 Visa Bulletin.
FB-2B. Due to low demand currently, additional forward movement is expected.
Note on Timing of NVC Fee Invoices
Mr. Oppenheim noted that the National Visa Center (NVC) is sending our requests for fee payments about 8 to 12 months in advance of the priority date becoming current (this is change to the previous practice of doing so 12-18 months in advance). When applicants pay the fee earlier after receipt of the fee invoice, Mr. Oppenheim is able to “see” the demand earlier and adjust the demand in the category accordingly, eliminating the need of major forward movement, followed by a retrogression.
We thank Victoria Neilsen at Immigration Equality for these FAQs. Please contact haydenlaw.com/consultation/ for a consultation.
The End of DOMA: What Your Family Needs to Know
General information, such as that provided below, does not constitute individual legal advice nor is it meant to take the place of individualized legal advice; however, we do hope to answer some of the questions we hear most often. You should always consult with Pederson Immigration Group about the individual facts of your case before making any decisions about your particular situation.
What did the Supreme Court say about DOMA?
The U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA was a federal law that limited federal marriage recognition to different-sex couples. Because immigration law is federal, DOMA prevented lawfully married lesbian and gay couples from obtaining lawful permanent residence (“green cards”) through marriage. Now that DOMA has been struck down, American citizens and lawful permanent residents can submit green card applications for their same-sex spouse.
Can LGBT couples get green cards now?
Yes, most families will now be able to obtain a green card.
With the end of DOMA, LGBT families will be treated the same under immigration law as different-sex immigrant families. Immigration law is complicated and there will still be barriers for some couples, but the systemic discrimination that prevented our families from receiving the same respect under the law as others has ended. Green card applications will no longer be denied solely because a couple is lesbian or gay.
Do we have to live in a marriage equality state to apply for a green card?
No. If you have a marriage that is valid in the state or country where you were married – regardless of where you live – that marriage makes you eligible to apply for a green card.
The United States Citizenship and Immigration Services (“USCIS”) looks to see whether you entered into a valid marriage in the state or country where you married. While some federal benefits may only be available to married couples if you live in a state which recognizes your marriage, fortunately, this is not the case for immigration benefits.
We married in Canada. Do marriages from outside the U.S. count?
Yes. As long as the marriage was validly entered into, it is sufficient for immigration purposes. In fact, Edie Windsor, the plaintiff in the Supreme Court case, married her wife in Canada.
Does a civil union or domestic partnership count?
The answer to this is not entirely clear, and we hope to have guidance on this soon. If it is possible for you and your partner to marry, You may be better off marrying because you could then feel more secure that your relationship will be recognized for immigration purposes without having to wait for further guidance.
My partner can’t get a visa to get to the United States, and we can’t marry in his/her country. What are our options?
U.S. citizens can file fiancé/e visa applications for committed partners. This application requires the couple to demonstrate that they have a “bona fide” relationship. When the visa is granted, the couple is required to marry within 90 days of the foreign partner’s entry into the US. Once married, the couple can file the marriage-based application from within the United States.
For families that can travel to another country that has marriage equality, another option would be to marry there and then have the U.S. citizen sponsor the foreign national spouse for a green card through consular processing in his/her home country.
We live in exile. How soon can we come home?
For couples in exile together, the U.S. citizen could file for a fiancé/e visa or the couple can marry and the foreign spouse can consular process. It will take several months before a visa is actually issued, but processing times vary by consulate. Therefore, we cannot say exactly how long it will take before families are able to return to the United States. Keep in mind that once a foreign national becomes a green card holder, s/he must live primarily in the U.S. If you are not ready to move home, it may be too soon to apply.
Once I apply to sponsor my spouse, how long will we have to wait until s/he can work?
For couples who live in the United States together, it is common to file an application for work authorization along with the application for lawful permanent residence. Processing times vary throughout the U.S., but generally employment authorization documents (EADs) are issued within 90 days, and marriage-based interviews are generally scheduled within 9 months after filing.
My partner is here on a work visa. Is a marriage-based visa better?
It depends. In general, marriage-based petitions are adjudicated quicker than many other applications for lawful permanent residence. Employment-based petitions are complex, with most categories requiring the employer to prove that there are no U.S. workers able, willing, and qualified to fill the position. There is also an annual cap on the number of employment-based green cards that can be issued, which has created years-long backlogs in several employment-based categories. Since there is no limit to the number of green cards that can be issued to the spouses of U.S. citizens, a marriage-based petition may result in a green card much more quickly. However, in a marriage-based case, the American spouse has to file an affidavit of support proving that he or she can maintain the applicant at above 125% of the poverty level. So, in some cases, it may make sense to pursue lawful permanent residence through an employer if that’s an option. Regardless of whether a foreign national obtains a green card through a marriage-based petition or through a different avenue (like an employer), he or she can apply to become a citizen after three years (rather than five) if married to an American citizen.
I am undocumented, my partner is American. Can we apply?
It depends. Under U.S. immigration law, the general rule is that a person who is in the U.S. without lawful status cannot change from within the U.S. from being here unlawfully to being here lawfully. One significant exception to this rule is that the spouse of a U.S. citizen can apply for a green card from within the U.S. (to “adjust status”) as long as he or she entered the U.S. through a valid port of entry, in other words, following inspection by a U.S. official.
For those undocumented individuals who entered the U.S. without inspection (“EWI”), the applicant must return to his or her home country to apply. In the past, this was unworkable for most families, because once the applicant left the country he or she was barred from returning for many years. There is now a waiver available which can minimize the length and uncertainty of that wait.
We have children. How will this affect them?
Generally, when a U.S. citizen files an application for lawful permanent residence for a spouse, he or she can also file for the spouse’s children as “step-children.” Even if you don’t see your children as “step-children,” if the foreign spouse is the biological parent of the children, filing a step-child petition for lawful permanent residence will probably provide the most efficient way to obtain their green cards. You and your partner must have married before the child turned 18, and the child must currently be under 21 and unmarried in order to get a green card at the same time as the parent’s marriage-based green card.
What about the immigration reform bill? Do we need to be in it now?
As long as USCIS and the Department of State interpret the Supreme Court decision as they should, we should not need further legislative action to provide relief to married lesbian and gay couples.
Immigration reform is still important for LGBT people, however. There are critical protections in the bill for asylum seekers, alternatives to detention for LGBT detainees, and procedural protections for those who are detained, including limiting the use of solitary confinement for LGBT detainees. The bill also provides a pathway to citizenship for those who are in the U.S. without lawful status, at least a quarter-million of whom are LGBT. The bill further provides an accelerated path to citizenship for DREAMers, young people who came to the US as minors, grew up as Americans, and whose movement for change has been led by many brave LGBT people.
Do we need a lawyer? Do we need a lawyer that specializes in LGBT issues?
It’s always a good idea to have a lawyer when applying for an immigration benefit and spousal petitions can be very complicated. Immigration law is very complicated. While many people successfully file marriage-based applications for lawful permanent residence without a lawyer, we generally recommend that people should seek out representation by qualified counsel.
What can we do today to start preparing for our application? What kind of things do we need to gather?
It is important that you and your partner be legally married. As with any marriage-based petition for lawful permanent residence, you will need to prove to USCIS that your marriage is “bona fide,” that is that you married for love and not merely to get an immigration benefit. Thus, USCIS will look for proof that your relationship is real, including proof that you: live together; share finances; hold each other out as a couple; spend holidays together, in some cases raise children together, etc. It will be helpful to begin to put this type of evidence together. For more information about the procedural requirements of filing for the green card please, see our FAQ on adjustment of status.
Source: Immigration Equality
U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.
USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
USCIS will provide more detailed information about the H-1B cap next week.